Case of the Day – Monday, March 6, 2023



I recall once enjoying the spectacle of a young lawyer squirming during a pretrial hearing. I couldn’t help myself – he represented the opposing party and generally was insufferable. The judge picked through the sharp young attorney’s pleadings like he was sorting a pile of smelly socks, and then demanded to know “what is this case doing in my courtroom?”

schadenfreude150311Ah, schadenfreude! Such a guilty pleasure, chiefly because I have no doubt that I myself have on many occasions given other lawyers opportunities to enjoy schadenfreude at my expense.

Still, there are a lot of cases that ought to never see the inside of a courtroom. Today’s case is a good example. A man named Klemme burned some brush one day. He carefully tended the burn pile, kept water and a phone handy lest the fire gets out of control, and checked for burning embers before he went home that night. He was on the scene the next day, too, and saw no smoldering debris. The next day, however, the wind came up, and somehow fire burned about 400 young seedlings planted in the neighboring unimproved property, owned by the widow Zech.

The seedlings were fewer than one percent of the 62,000 seedlings planted by the Zechs pursuant to a deal they had made with a federal conservation program. They had bought seedlings for about 30¢ apiece and planted them over a period of years. Then Mr. Zech died, and after that, Mrs. Zech never visited the property. She admitted she couldn’t say for sure that it had been Klemme’s burn pile that had started the fire. She admitted that a lot of other seedlings had died of natural causes and that she hadn’t replaced the seedlings allegedly killed by the fire or the ones that had simply died. Finally, she was unable to show that the fair market value of the real estate had fallen because of the damage to about 0.66% of the seedlings on the premises.

This case was not, to use as a Latin phrase, a “slam dunker” for Mrs. Zech. If she felt she had been damaged, why didn’t she spend $120.00 for 400 new seedlings? If she permitted many of the 62,000 seedlings to die without replacement, how seriously had her enjoyment of the property – which she didn’t visit because of the amount of snowfall and because it apparently evoked memories of her late husband – been compromised?

Mr. Klemme’s lawyer filed a motion for summary judgment, asking the Court to grant judgment for the defendant without a trial. Summary judgment is a useful device for economically ridding the court of a dog of a case, where there is no genuine issue of fact, and where one side is entitled to judgment as a matter of law. The trial court obliged him, holding that the proper measure of damages was decrease in the value of the property and because Mrs. Zech could not show any evidence that the value of the premises had fallen.

Mrs. Zech appealed, arguing that the measure of damages should have been the replacement value of the seedlings. What, we’re talking $120.00 here? As little sense as that made, the trial court held that the seedlings were “special purpose” trees, because the Zechs were required to plant them as a condition of having the land enrolled in the CRP. Because they were “special purpose” trees, the proper measure was decrease in fair market value, the Court of Appeals held, thus agreeing with the defendant.

A priceless Ming vase (note the clear label)

A priceless Ming vase (note the clear label)

This is a peculiarity of the law of negligence. Not only must there be a departure from the standard of care (someone has to be a klutz), but there must be harm flowing from the klutziness. If I drop your priceless Ming vase, but it bounces without breaking, you have no claim against me for negligence. If it breaks … that’s another story.

Was Mr. Klemme negligent? Did his burn pile spontaneously combust? We’ll never know, because – whatever caused the fire – Mrs. Zech didn’t suffer any loss.

Zech v. Klemme, 803 N.W.2d 128 (Iowa App. 2011). One spring day, strong winds rekindled an ember in a burn pile located on Klemme’s property and started a grass fire that damaged trees on Zech’s property. Several days before, Klemme had burned brush and tree limbs in a burn pile located about 300 feet from the Zech property.

Klemme kept a water hose nearby and used the hose to wet down the adjacent area to prevent the fire from spreading. He also had a cellular telephone available to contact the local fire department if necessary. Klemme said he stopped burning at about 11 a.m. on April 2, and when he left his property at the end of the day, the burn pile had subsided to ashes. He worked on his property on April 3, and observed the pile throughout the day, noting no sign of any smoldering embers. Klemme also said he had no knowledge there would be any strong or sudden gusts of wind on April 4th.

fire150311Zech had enrolled the land where the fire occurred in the federal Conservation Reserve Program (CRP). The CRP required Zech to prevent erosion and provide wildlife habitat on the acreage and prohibited her from harvesting the trees or using the land for livestock or crop fanning. In exchange for her enrollment in CRP, Zech received an annual payment starting in 2002 and continuing through 2006. For conservation purposes, Zech and her late husband planted between 2,000 and 3,000 bare-root seedling trees each year. At the time of the fire, about 62,500 trees of various species had been planted on the CRP land.

The Zechs purchased the bare-root seedlings from the Iowa State Forest Nursery at about $0.30 each. Zech asserted that over 400 trees were damaged in the fire. In the ordinary course of nature, wildlife, insects, disease, and climatic conditions have also damaged or destroyed some of the trees on the CRP land. Zech has not removed, replaced, treated, repaired, pruned, trimmed, or cut down any of the trees that have been damaged or destroyed by the fire or by natural causes. She does not live on the CRP property and the fire did not change her use of the land.

Zech contended in her complaint the appearance of the burned branches on the trees she planted with her late husband has diminished her emotional enjoyment of the land. However, she did not argue the fire has diminished the fair market value of the land. The fire did not cause Zech to incur a loss of income, nor did it cause her to incur any additional expense. She also did not argue that the damaged trees had any historic value.

Zech had no personal knowledge as to the cause or origin of the fire, and she did not contend Klemme acted intentionally to harm the trees.

The trial court held that the trees on the land were “special purpose” trees and that the measure of damages was the decrease in the fair market value of Zech’s property. Because there was no proof of any loss of market value, there were no damages, and Klemme was granted summary judgment.

Zech appealed.

Held: The trial court properly determined what damages should be considered, and correctly concluded that Zech had not been damaged.

The Court of Appeals observed that Laube v. Thomas had held 25 years before that “[i]t is impossible to state a simple, all-purpose measure of recovery for loss of trees.” Therefore, trial courts are granted a degree of discretion to select how to assess damages based on the facts of each case.

seedlings150311Zech argued the appropriate calculation for damages should be the replacement cost of the seedling trees damaged or destroyed by the fire. Where trees can be replaced, a reasonable cost of replacement is the appropriate measurement of damages. Laube, the Court noted, involved the removal of about 100 walnut trees. The Laube court decided that the replacement cost measure “would obviously be inappropriate,” and the trial court in this case – which was dealing with about 400 trees – was likewise right that a replacement calculation would not work. Compounding the problem, Zech admitted she has not replaced or treated any of the damaged trees since the fire in 2005, nor has she expressed an intent to do so in the future.

Instead, the trial court concluded that the appropriate measure of damages for Zech’s loss should be the “special purpose” or “special use” calculation used in Laube. Where trees are put to a “special purpose” or have a “special use” – such as for windbreaks, shade or ornamental use – damages are based upon the difference between the market value of the land before and after the destruction of the trees. The trial court viewed the conservation use of the trees as required by CRP to be a special purpose, and thus concluded that any enjoyment Zech derived from the trees was incidental to the primary purpose of the CRP land. Besides, the Court of Appeals noted, while Zech herself had testified that the burned trees reduced her enjoyment of the land, she admitted she no longer regularly walks on the CRP land, citing the fact that “there has been too much snow for one thing.” She also admitted that she had ceased her custom of walking the land after her late husband passed away.

Zech also admitted that the fire did not cause her to change her use of the land. The trial court concluded that Zech’s deposition testimony did not establish a special use relating to her enjoyment of the land, nor a diminution in her enjoyment due to the fire. Using the “special purpose” market value calculation, the trial court concluded that the issue of damages entitled Klemme to summary judgment because the record did not demonstrate a loss in market value of the land.

The Court of Appeals approved of these findings and left them undisturbed. Because Zech has not sustained any compensable economic loss as a result of the fire, the Court affirmed the trial court’s summary judgment ruling on damages.

– Tom Root


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