Dr. Seuss, The Lorax (1971)
Authored by Synclair B. Goyer
Compensatory damages are one of the most common forms of civil remedies awarded in cases involving torts, especially for cases where real property has been damaged. However, there is contention across jurisdictions regarding how courts, juries, and attorneys should properly value damage to real property and agricultural fixtures like trees, shrubs, fruit, and crops.[2] Four methods of calculating these compensatory damages have gained popularity. These methods include: the difference in value to the land; the value of the trees, shrubs, fruit, or crops destroyed or damaged; the crop loss (i.e. the value the trees, shrubs, fruit, or crops could have had at market had they made it to maturity without injury); and the replacement or restoration cost of the trees, shrubs, fruit, or crops.[3]
The calculation for compensatory damages for injuries to real property typically follows a straightforward set of general rules. These rules are problematic when applied to trees, shrubs, fruit, or crops.[4] For general damage to real property, courts determine whether the damage is permanent (the property is so damaged as it cannot be restored) or whether the damage is temporary (the property can be restored).[5] In cases of permanent damage, the tortfeasor is liable for the difference in the value of the property before and after the damage.[6] In cases of temporary damage, the tortfeasor is liable for restoration or repair costs.[7] However, applying this general rule to trees, shrubs, fruit, or crops is problematic because it can be challenging to determine if certain damages should be classified as permanent or temporary. For example, when a tree, shrub, fruit, or crop is destroyed, is the loss of said plant life the permanent damage or the damage to the real estate which will recover in time.[8] As such, courts developed four separate calculations for compensatory damages to be analyzed on a case-by-case basis.[9]
While some jurisdictions are more set in a method that the courts of that jurisdiction prefer, many jurisdictions leave it to the attorneys to present evidence on the appropriate method to be used and allow the jurors to decide which calculation they believe to be the best.[10] This creates excellent opportunities for attorneys to argue for what is best for their client, and as such, attorneys need to know all they can about the different calculation methods, what jurisdictions lean towards which methods, and which method is going to bring about the most favorable result for their client. While courts recently have been leaning more towards accepting the difference in the value of land as the dominant calculation for compensatory damages, in many cases, the damage or injury may not significantly impact the value of the property as a whole. Therefore, it is often in the best interest of the client for an attorney to argue for the value of the injured trees, shrubs, fruit, or crops or their replacement cost.
Many states have shown their support behind the difference in value of the land calculation of compensatory damages.[11] Under this calculation method, evidence is presented on the value of the land just before the damage and on the value of the land just after the damage.[12] In these cases, it is recommended that attorneys focus their evidentiary presentation on expert witnesses who can testify as to the value of the property before and after the damage.[13] It is also important to note that even though many states have shown a tendency to lean towards the difference in value of the land calculation, courts do not strictly adhere to this rule. Almost all courts make allowances for attorneys to argue that their specific case involved damage to trees, shrubs, fruit, or crop of unique intrinsic value or revenue-generating value.[14]
The second most popular calculation of compensatory damages for damaged trees, shrubs, fruit, or crops is the intrinsic value of the plant life before the injury.[15] Courts have held that when trees, shrubs, fruit, or crops are destroyed and have a distinct value of definite measurement, the value of the tree, shrub, fruit, or crop destroyed is the best measure of damages.[16] It has been further reasoned that if the plant life destroyed has a value which can be accurately measured and ascertained without reference to the value of the soil on which it grew, the recovery should be for the value of the plant destroyed and not for the difference in the value of the land before and after such destruction.[17] Here, attorneys have the burden of evidencing that the damaged plant life is distinct from the land, can be individually valued, and what that individual value is.[18] Expert testimony once again is likely to be the most persuasive evidence.
The third method of calculating compensatory damages is the crop loss value. This method involves testimony regarding the value that the trees, shrubs, fruit, or crop would have earned at market.[19] Under this method, expert testimony remains the best source of evidence regarding how much the damaged plant life would have gone for absent the injury; however, it can be difficult to find individuals qualified to be experts.[20] As such, testimony regarding damages often will primarily come from the plaintiff regarding historical data for their sales or how much they got for their similar but undamaged produce.[21] Courts will also entertain testimony from local sellers, for example grocery store managers, department of agriculture employees, etc. Note here, due to the lack of expert qualification, courts and juries often will not take these testimonies at face value and will most likely determine the proper amount of compensatory damages to be between the values evidenced by each party.[22] Knowing this, it is recommended that plaintiff’s attorneys gather a large group of witnesses who can testify regarding the market value of the tree, shrub, fruit, or crop had it not been damaged. It is also recommended that plaintiff’s attorneys enter into evidence their client’s historical records on sale figures. These two sources of evidence and testimony will sway a court and jury the most.
The fourth and final method of calculating compensatory damages is the replacement cost of the damaged tree, shrub, fruit, or crop. Landowners have the right to enjoy their property according to their own personal tastes and as such, should be compensated for the costs to restore their property to the condition it was in prior to the damage.[23] Where the destruction of the tree, shrub, fruit, or crop is a temporary injury to the land and the plant life may also be replaced in a comparatively brief time, the most appropriate compensation is the replacement cost of the tree, shrub, fruit, or crop.[24] When attempting to convince a court or jury to accept the replacement cost as the appropriate method of compensatory damages, attorneys should focus on presenting evidence on the unique value their particular client has placed on the destroyed plant life, and on the relatively temporary damage done and physical ease of replacement.[25] Personal testimony likely represents the best form of evidence; however, attorneys should be prepared for counter testimony attempting to show that the particular damaged plant life is just one of many and holds no true unique value to the property of the landowner.
Overall, courts have decided that the most appropriate measure for compensatory damages is that which compensates the owner for all the detriment proximately caused and that there is no fixed rule for the measurement of such damages.[26] Once a court or jury has determined that the defendant is liable for the damage to the tree, shrub, fruit, or crop in question, the courts and juries want to award whatever compensatory damages will most fairly place the plaintiff in a position equal to which they were in prior to the injury. Therefore, whichever measure is most appropriate to compensate the injured party for the loss sustained in the particular case, is the one which should be used.[27] All four of the above-described methods of calculating compensatory damages have the chance to fairly compensate an injured landowner, but it will be up to the attorney to advocate for the method that provides the greatest value to their client. Deciding which method should be advocated for will depend on the various factors described above including whether the damage inflicted affects the property as a whole, whether the damaged trees, shrubs, fruit, or crops can be independently valued, the temporary or permanent nature of the damage, and the unique intrinsic value the damaged plants have with the landowner. Each method likely will result in disparaging monetary differences; therefore it is important to consider all of these factors and the precedential case law of any particular jurisdiction.
[1] Dr. Seuss, The Lorax (1971).
[2] Kristine Cordier Karnezis, Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R. 3d 800 (1979).
[3] Id.
[4} Evenson v. Lilley, 295 Kan. 43, 47 (Kan. 2012).
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] See generally, Karnezis, supra note 2 (describing the four primary calculation methods across multiple jurisdictions).
[10] Id. at 7.
[11] Karnezis, supra note 2 at 7.
[12] Withers v. Ferrero Const. Co., 320 A.2d 576, 552 (Md. Ct. Spec. App. 1974).
[13] See Missouri & N.A.R. Co. v. Phillips, 133 S.W. 191, 191-92 (Ark. 1910) (holding that testimony regarding value of trees was proper for the jury to make a determination on damages).
[14] Evenson, 295 Kan. 43, at 50.
[15] Karnezis, supra note 2 at 15-17.
[16] Barker v. Missouri Pac. Ry. Co., 145 P. 829, 830-31 (Kan. 1915).
[17] Whitbeck v. New York Cent. R. Co., 36 Barb. 644, 645-46 (N.Y. Gen. Term 1862).
[18] Karnezis, supra note 2 at 15-17; Whitbeck, 36 Barb. 644 at 645-46.
[19] Wm. G. Roe &Co. v. Armour & Co., 414 F.2d 862, 871-72 (5th Cir. 1969).
[20] Augustine v. Dickenson, 406 So. 2d 306, 308 (La. Ct. App. 1981).
[21] Id.
[22] Id. at 308-09.
[23] Samson Const. Co. v. Brusowankin, 147 A.2d 430, 435 (Md. 1958).
[24] Steckman v. Quincy, 165 S.W. 1122, 1124 (Mo. Ct. App. 1914).
[25] Samson, supra note 23 at 435.
[26] Baker v. Ramirez, 235 Cal. Rptr. 857, 865 (Cal. Ct. App. 1987).
[27] Id.
American Journal of Trial Advocacy 