Kansas Supreme Court- Case # No. 102, 100 Evenson v. Lilley
Mark Evenson and Janis Evenson v. Tim Lilley, No. 102, 100.
The Evensons owned 160 acres of property in Greenwood County. In the property, there were several pine and fruit trees, other trees and some buildings.
Part of the property was leased while the other was used for camping, hunting and other leisure activities.
Tim Lilley had leased the property bordering.
He started fire on it which he intended to control but lost control of it thereby spreading to Evensons’ property.
The fire destroyed some buildings and some trees. The Evensons subsequently filed a suit claiming damages of up to $75, 000.
Lilley had accepted liability and the issue for determination by the District Court was the quantum of damages.
The Evensons wanted the damages to be calculated on the basis of restoring the property while Lilley advocated for the difference in the market price of the property prior to and after the fire. The court granted $4, 687 as damages on the basis of loss in value to the property.
The Evensons appealed the decision to the Court of Appeals which affirmed the decision.
They subsequently applied for review to the Supreme Court asking the court to determine whether the award of damages for negligent destruction to trees was to be based on the permanency or temporal nature of the damage.
Whether the loss to realty is the correct way of calculating damages for the negligent destruction of trees
Yes, as a general rule, loss to realty was a correct way of calculating damages for destruction of trees.
This is because the basis for awarding damages in tort is restitution not granting a windfall profit. Though the court disagreed with the reasoning of the District Court and the Court of Appeals, it nevertheless agreed with the conclusion and thus the decision was affirmed.
The Court applied the general rule that damages to realty are calculated on the basis of loss i.e. the variation in value prior to and after the damage. It recognized however that when it comes to damages for negligent destruction of trees, a court may consider more than a single measure of damages to ensure adequate compensation to the party. One of the measures considered was the cost of repairing or restoring the property to its previous condition. The court stipulated that in law this measure was only available where the damage was temporary; in cases of permanent damage, the before and after rule was more appropriate.
The court opined that applying this measure to destroyed trees was problematic as it was not easy to determine whether the loss was of the tree or the land upon which the tree was growing. This, the court reasoned, meant that the measure was inappropriate for Evensons’ case.
The next measure considered was a court’s discretion to award damages for destroyed trees where it is shown that they had some distinct inherent value to the property. For instance, where the trees destroyed produced some fruit which the party sold or if the trees had some aesthetic value. In this case, the damages would be the definite value of the trees. In this regard, the court considered that the Evensons had adduced little evidence to show that the destroyed trees had some special intrinsic value.
The court also considered that the ways of calculating damages proposed by the Evensons would somehow provide a windfall profit to them. This, the court held, would be an affront to the principle of restitution which is the basis and foundation of award of damages in tort.