Lampi v. Speed

September 14 2011

DA 10-0169

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 231

ROHNN LAMPI,

Plaintiff and Appellant,

v.

ALLEN SPEED,

Defendant and Appellee.

APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DV 08-17
Honorable Blair Jones, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

L. Randall Bishop (argued), Jarussi & Bishop, Billings, Montana
Alex Rate, Rate Law Office, Bozeman, Montana

For Appellee:

Randall G. Nelson (argued), Nelson & Dahle, P.C., Billings, Montana

For Amicus:

Lawrence A. Anderson (argued), Attorney at Law, Great Falls, Montana
(for Montana Trial Lawyers Association)

Argued and Submitted: February 16, 2011
Decided: September 14, 2011

Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 The Twenty-Second Judicial District Court, Carbon County, denied motions for

summary judgment and judgment as a matter of law filed by Appellant Rohnn Lampi

(Lampi). Lampi sought an order that restoration damages constituted the appropriate

measure of damages for his fire loss claim. The court also denied Lampi’s motion in limine

to exclude evidence of diminution in market value of Lampi’s property caused by the fire

and Lampi’s objection to a jury instruction. We apply Restatement (Second) of Torts § 929

as adopted by our decision in Sunburst School Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 338

Mont. 259, 165 P.3d 1079. We reverse and remand for a new trial.

¶2 We review the following issue on appeal:

¶3 Whether the District Court wrongly denied Lampi’s motions to establish restoration

damages as the appropriate measure of damages in his case.

FACTUAL AND PROCEDURAL HISTORY

¶4 Lampi owns forty acres of land near Red Lodge, Montana. Allen Speed (Speed),

Lampi’s neighbor, admitted liability for negligently dumping ashes that caused a wildfire

that burned the trees and vegetation on Lampi’s property. Firefighters saved Lampi’s house,

but the rest of his property suffered extensive damage from the burn.

¶5 Lampi grew up in Red Lodge and purchased the land for a vacation and retirement

home. He carefully selected his land for its aesthetic beauty and wild setting. Lampi did not

buy the land for investment purposes. Lampi intends to hand the land down to his children

and grandchildren. Lampi shot his first deer with his father on this property. Lampi also
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testified that he intends to take every measure that he can to restore his land back to its pre-

fire condition. The fire destroyed 481 pine trees and 687 aspens. Lampi felt particularly

fond of the aspen grove directly behind his house that provided shade, privacy, and wildlife

viewing.

¶6 Speed admitted liability for negligently burning Lampi’s land. The parties could not

agree, however, on what constituted fair compensation for Lampi’s loss. Lampi’s estimated

cost to replace the lost trees on his land exceeded the decline in monetary value to his

property from the fire. Lampi argued that he should be allowed to recover damages to

replace the trees and restore his land because he had no plans ever to sell his land and that

the loss in monetary value of the property should be deemed irrelevant to him. Lampi based

his claim on our recent decision in Sunburst School District No. 2, where we approved a jury

award for the plaintiffs’ restoration cost that exceeded by seven times the diminution in

market value of the affected property.

¶7 Lampi brought this action in district court and sought a jury trial to determine

damages. Speed admitted liability, so the jury’s only duty consisted of determining the

amount of damages that Speed owed Lampi for the harm caused to Lampi’s land by the fire.

Lampi filed several motions to establish that restoration damages represented the

appropriate measure of damages for his claim. The District Court denied the motions and the

case proceeded to trial.

¶8 Lampi and Speed presented expert testimony at trial to establish the amount of

Lampi’s damages. Lampi’s expert, Tom Yelvington (Yelvington), testified that it would cost
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about $1,050,000 to replant all of the trees and restore the property to pre-fire conditions.

Speed’s restoration expert, Jim Cancroft (Cancroft), testified that it would cost about

$550,000 to replant trees and restore the property to pre-fire conditions. Both Yelvington

and Cancroft testified to less expensive restoration options, but the alternative options did not

attempt to restore the property to its original condition. Cancroft testified that the vegetation

on the property, especially the aspen grove, naturally would restore itself within a reasonable

period of time. Speed’s property expert, Tom Wicks (Wicks), valued Lampi’s property at

$646,000 (not including the house). Wicks testified that the property had lost $193,800 in

value as a result of the fire.

¶9 The District Court presented the jury with the question of whether the usual

diminution in market value or restoration damages to restore the trees constituted the

appropriate measure of Lampi’s damages. The court first instructed the jury that it could

award “the difference in the market value of the property immediately before and

immediately after the damage occurred.” The court instructed in the alternative that, based

on the jury’s own consideration of the evidence, it could award reasonable restoration costs

with the allowance for natural regeneration “if the jury finds that [diminution in market

value] fails to fully compensate the plaintiff.” The court overruled Lampi’s objection to the

instruction. The jury awarded Lampi $250,000. The verdict did not specify whether the jury

awarded diminution in market value, restoration damages, or some combination. Lampi

appeals.

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 STANDARD OF REVIEW

¶10 This Court reviews de novo a district court’s ruling on a summary judgment motion

applying the same criteria as the district court pursuant to M. R. Civ. P. 56. Plains Grains

L.P. v. Bd. of Co. Commrs. Cascade Co., 2010 MT 155, ¶ 21, 357 Mont. 61, 238 P.3d 332.

We also review de novo a district court’s ruling on a motion for judgment as a matter of law.

Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727.

¶11 A court may grant summary judgment only if the evidence presented to the court

establishes that no genuine issue of material fact exists and that the moving party is entitled

to judgment as a matter of law. M. R. Civ. P. 56. Lampi bears the initial burden of showing

that no genuine issues of material fact exist. PPL Mont., LLC v. State, 2010 MT 64, ¶ 84,

355 Mont. 402, 229 P.3d 421. Once Lampi has met this burden, Speed must present

substantial evidence essential to an element of the case to raise a genuine issue of fact. Id.

DISCUSSION

¶12 Whether the District Court wrongly denied Lampi’s motions to establish restoration

damages as the appropriate measure of damages in his case.

¶13 Lampi filed two separate motions for partial summary judgment, one before discovery

and one after discovery, on the matter of restoration damages. He argued that restoration

damages constituted the appropriate measure of damages under Sunburst based on the

undisputed facts of this case. The District Court determined that disputed facts existed that

precluded it from determining whether Lampi’s claim justified restoration damages. Lampi

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also filed a motion for judgment as a matter of law at the close of trial in which he asked the

court to establish the cost of restoration as the appropriate measure of damages. The court

denied Lampi’s motion.

¶14 The parties present different interpretations of this Court’s restoration damages rule

adopted in Sunburst. Lampi argues that the rule pronounced in Sunburst entitled him to

restoration damages as a matter of law because he had established (1) that he suffered a

temporary injury, (2) that he had “reasons personal” to restore the property, (3) that he

genuinely intends to restore the property, and (4) that the cost of restoration is not

disproportionate to the pre-tort value of the property.

¶15 Speed counters that the restoration damages rule from Sunburst should not extend to

Lampi’s claim. Speed argues that Lampi’s injury—burned vegetation—will naturally restore

itself, unlike the toxic contamination in Sunburst. Speed suggests that Sunburst applies only

to cases involving toxic contamination.

¶16 This case presents the Court its first opportunity to interpret and apply Sunburst and

the restoration damages rule set forth in Restatement (Second) of Torts § 929. The Court

rejects both Lampi’s and Speed’s interpretation of the rule. The following sections discuss

the Court’s adoption of the restoration damages rule in Sunburst. We then apply the rule to

Lampi’s claim.

I. Sunburst.

¶17 Montana formerly followed the presumption that diminution in market value

constituted the appropriate measure of damages for injury to property. Burk Ranches, Inc., v.
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State, 242 Mont. 300, 790 P.2d 443 (1990). The Court always had recognized, however, that

no single measure of damages can serve in every case to compensate adequately an injured

party. Burk Ranches, 242 Mont. at 305, 790 P.2d at 445. Our decision in Sunburst officially

rejected any one-size-fits-all approach to property damages. A review of the circumstances

giving rise to the decision in Sunburst to broaden the available remedies in property damages

cases provides helpful guidance in resolving Lampi’s claim.

¶18 Texaco Inc. (Texaco) operated a gasoline refinery just outside of the town of

Sunburst, Montana. The refinery leaked gasoline that contaminated the groundwater and soil

in the town of Sunburst. Sunburst, ¶ 10. Sunburst residents sought $30 million in damages

to restore the property to its pre-tort condition. Texaco objected to an award of restoration

damages on the grounds that the cost of remediating the contamination greatly exceeded the

market value of the property. The contaminated property had an aggregate market value of

approximately $2 million. Id. at ¶ 49. The contamination essentially rendered the property

valueless.

¶19 The district court instructed the jury to award all costs that “reasonably would be

necessary to restore the plaintiffs’ property to the condition it would have been absent

Texaco’s contamination.” Id. at ¶ 23. The jury awarded $15 million in restoration damages.

Id. at ¶ 25. Texaco appealed the award on the grounds that restoration damages never can

exceed a property’s market value. Id. at ¶ 29.

¶20 The Court upheld the jury’s award of restoration damages. Little incentive would

exist for tortfeasors to prevent or remediate contamination, especially in parts of Montana
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where property values are relatively low, if restoration damages could not exceed a

property’s market value. Id. at ¶ 46. The Court reasoned that limiting Texaco’s remediation

costs to the pre-tort value of the contaminated property essentially would have provided

Texaco with a private right of inverse condemnation. Id. We concluded that “statutory and

common laws, such as environmental laws” can compel repair or restoration costs in excess

of the diminution in market value. Id. at ¶ 31. The Court adopted the restoration damages

rule from Restatement (Second) of Torts § 929 (1979). Sunburst, ¶ 36.

II. Restoration Damages.

¶21 Section 929 and Sunburst govern the application of restoration damages in Montana.

The law of torts works to ensure that an award of damages restores an injured party as near

as possible to the party’s pre-tort position—no better, no worse. Sunburst, ¶ 31 (citing

Restatement (Second) of Torts § 901 cmt. a (1979)). The difference between the value of

property before and after an injury, or the diminution in market value, may constitute an

appropriate measure of damages in property damage cases. Sunburst, ¶ 30; Burk Ranches,

242 Mont. at 305, 790 P.2d at 445. We recognized in Sunburst, however, that diminution in

market value will not always correspond with a plaintiff’s damages resulting from injury to

real property. Sunburst, ¶ 37. Certain cases warrant an award of restoration damages in

excess of the property’s diminution in market value. Sunburst, ¶ 29.

¶22 We adopted Restatement (Second) of Torts § 929 and comment b in Sunburst for the

calculation of damages to real property. Sunburst, ¶ 36. Section 929 provides in pertinent

part:
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 (1) If one is entitled to a judgment for harm to land resulting from a past
invasion and not amounting to a total destruction of value, the damages
include compensation for
(a) the difference between the value of the land before the harm and the value
after the harm, or at his election in an appropriate case, the cost of restoration
that has been or may be reasonably incurred[.]

¶23 Under § 929 the plaintiff may elect in an “appropriate case” to seek either the

diminution in market value or the cost of reasonable restoration as the plaintiff’s measure of

damages. Restatement (Second) of Torts § 929(1)(a). An “appropriate case” for restoration

damages involves temporary damage and reasons personal to the plaintiff to restore property

to its former condition. Restatement (Second) of Torts § 929 cmt. b.

¶24 The cost of restoring property to its pre-injury condition generally constitutes the

appropriate measure of damages for temporary injuries. Restatement (Second) of Torts § 929

cmt. b; Felton Oil Co. v. Gee, 182 S.W.3d 72, 78 (Ark. 2004). Section 929 imposes a

limitation upon this right. The plaintiff must establish reasons personal to restore the

property if the cost of replacing the land to its original condition exceeds the diminution in

value. Restatement (Second) of Torts § 929 cmt. b; Sunburst, ¶ 35.

¶25 Speed points out that Lampi’s injury—burned vegetation—differs from the injuries in

Sunburst—toxic contamination. Speed suggests that this distinction allowed the District

Court to reject Lampi’s motions to establish restoration damages as the appropriate measure

of damages in this case. Speed urged the District Court to follow this Court’s rule for

damages to vegetation established in Kebschull v. Nott, 220 Mont. 64, 714 P.2d 993 (1986),

instead of Sunburst and Restatement (Second) of Torts § 929.

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¶26 We concluded in Kebschull that the diminution in market value constituted the

appropriate measure of damages for destroyed vegetation from a negligently started fire.

Kebschull, 220 Mont. at 67, 714 P.2d at 994-95. Speed argued in his summary judgment

briefs that Lampi’s injury—burned vegetation—did not qualify as the type of injury that the

Court contemplated in Sunburst. We disagree.

¶27 Kebschull relied on the presumption that diminution in market value constituted the

appropriate measure of damages in all property cases. Kebschull, 220 Mont. at 65, 714 P.2d

at 994. Property experts testified that no diminution in market value had occurred and that

the plaintiff had not suffered damages as a result. The Court had not yet adopted

Restatement (Second) of Torts § 929. This Court in Kebschull did not consider whether the

case involved a temporary injury or whether “reasons personal” existed to support restoration

damages. Kebschull does not limit a court’s ability to award restoration damages to replace

Lampi’s burned vegetation in light of our decision in Sunburst and our adoption of § 929.

¶28 Lampi asks the Court to expand the restoration damages rule in Montana. The

majority of courts that have applied § 929, including this Court, have considered whether a

jury may award restoration damages in excess of the diminution in market value. Sunburst,

¶¶ 28-49. We have concluded that diminution in market value cannot serve as a cap on

restoration damages. Id. at ¶ 46. Lampi now asks the Court to rule that restoration damages

represent the only appropriate measure of damages in certain circumstances.

¶29 Lampi argues that he had presented the court with sufficient evidence before trial to

establish that his claim represented an appropriate case only for restoration damages. The
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restoration damages rule requires plaintiffs to prove two separate elements, rather than the

four elements Lampi set forth. Lampi must establish (1) temporary injury and (2) reasons

personal in order to establish restoration damages as the appropriate measure of damages in

his case. Sunburst, ¶¶ 31-39.

¶30 The Court in Sunburst also addressed in a separate section whether Sunburst residents

would receive a windfall if restoration damages exceeded the diminution in market value.

Texaco had complained that nothing required Sunburst residents to use an award of

restoration damages actually to restore the property. The Court concluded that Sunburst

residents had demonstrated through testimony at trial that they genuinely intended to restore

the property. Id. at ¶¶ 40-44. Lampi thus reasoned that the restoration damages rule requires

him additionally to prove a genuine intent to restore his property as a separate element of the

restoration damages rule. Lampi correctly identifies that he must genuinely intend to restore

his property in order to satisfy the reasons personal rule.

¶31 Sunburst did not create a genuine intent to restore property as a separate element of

proof. Neither § 929 of the Restatement, nor the courts that have adopted its reasoning,

recognize a genuine intent to restore the property as a separate element of proof. The

Restatement and the courts that have addressed this issue instead have analyzed it as part of

the reasons personal element. Osborne v. Hurst, 947 P.2d 1356, 1359 (Alaska 1997);

Restatement (Second) of Torts § 929. The reasons personal rule requires plaintiff to establish

that the award actually will be used for restoration, and, therefore, subsumes this analysis.

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We examine in turn whether Lampi presented sufficient evidence of each element to satisfy

his claim for restoration damages.

Temporary Injury.

¶32 We first must analyze whether Lampi presented the court with sufficient evidence to

establish that the burned vegetation qualifies as a temporary injury. Restatement (Second) of

Torts § 929. An injury qualifies as temporary if the tortfeasor could restore the destroyed

property to substantially the condition in which it existed before the injury. Sunburst, ¶ 31

(citing Burk Ranches, 242 Mont. at 306, 790 P.2d at 447); Restatement (Second) of Torts

§ 929(1); U.S. v. Denver & Rio Grande W. R.R., 547 F.2d 1101, 1104-05 (10th Cir. 1977).

An injury that would cease to exist once remediation or restoration has been completed

qualifies as temporary. Felton Oil, 182 S.W.3d at 78.

¶33 Courts in other jurisdictions have concluded that property damage in the form of

damage to trees or a loss of trees can be restored, and, therefore, the injury qualifies as a

temporary injury under § 929. Osborne, 947 P.2d at 1359 (restoration damages proper after

defendant negligently burned property); Heninger v. Dunn, 162 Cal. Rptr. 104, 108-09 (Cal.

App. 1980) (restoration damages proper after defendants cleared trees for a road on

plaintiffs’ property); Huber v. Serpico, 176 A.2d 805, 813 (N.J. Super. 1962) (restoration

damages proper after defendants negligently logged property); Samson Construction Co. v.

Brusowankin, 147 A.2d 430, 435-37 (Md. 1958) (restoration damages proper after a

construction company wrongly cleared trees from plaintiff’s property).

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¶34 The parties appear to agree that the fire caused temporary damage to Lampi’s

property. Speed argues that Lampi “temporarily lost the naturally occurring vegetation upon

his undeveloped wildland.” Speed opined that the trees eventually would regenerate over

time with minimal restoration efforts. The restoration of Lampi’s property to its original

condition may take a substantial amount of time, but the parties recognized that the property,

nonetheless, eventually could be restored. This apparent agreement on the temporary nature

of the damages comports with the reasoning of other courts on this question.

¶35 For example, the defendant in Denver & Rio Grande negligently caused a fire that

burned 55 acres of remote government property classified as non-commercial forest land.

Denver & Rio Grande, 547 F.2d at 1104. The fire burned vegetation in forested terrain and

along rocky outcroppings in the steep canyon walls of Price Canyon, Utah. The court

classified the damages as temporary even though “restoration of the tract to its original

condition by re-establishing destroyed vegetation would be a long process.” Id. at 1104-05.

¶36 Application of the Restatement leads us to join other courts that have concluded that

tree damage generally constitutes a temporary injury because trees can be replanted and

restored. Restatement (Second) of Torts § 929(1). Section 929 allows Lampi to elect

restoration damages for his temporary injury. Whether Lampi’s loss qualifies as an

“appropriate case” to justify restoration damages in excess of the diminution of market value

hinges, however, on whether Lampi presented sufficient evidence of reasons personal to him

to restore the property. Restatement (Second) of Torts § 929 cmt. (b); Sunburst, ¶ 36.

Reasons Personal.
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¶37 The reasons personal rule requires Lampi to prove that he possesses a personal reason

to restore the damaged property. Sunburst, ¶¶ 32, 43; Osborne, 947 P.2d at 1359; Kelly v.

CB&I Constructors, Inc., 179 Cal. App. 4th 442, 450-51 (Cal. App. 2009). Sunburst

provided the first opportunity for this Court to apply the reasons personal rule. We also look

to other jurisdictions that have adopted § 929 for guidance on the application of the reasons

personal rule. See Bd. of Co. Commrs. Weld Co. v. Slovek, 723 P.2d 1309, 1314-15 (Colo.

1986); Roman Catholic Church v. La. Gas, 618 So. 2d 874, 877 (La. 1993); Osborne, 947

P.2d at 1359.

¶38 The plaintiffs in Sunburst sought restoration damages after Texaco had contaminated

plaintiffs’ personal residences and a community with a well-known carcinogen—benzene.

Sunburst, ¶ 38. We recognized that a plaintiff’s desire to enjoy and live in his home

represents a typical personal reason to seek repair of the property. Id. at ¶ 38 (citing Slovek,

723 P.2d at 1314-15). The plaintiffs also had demonstrated that any award would be used to

remediate plaintiffs’ property. Id. at ¶ 43.

¶39 A landowner’s motivation for holding property provides guidance as to whether

reasons personal exist. Restoration costs generally constitute the most appropriate measure

of damages for a plaintiff who demonstrates a desire to continue to use the damaged property

instead of selling it. Sunburst, ¶ 34 (citing Roman Catholic Church, 618 So. 2d at 877);

Osborne, 947 P.2d at 1359. A restoration award, in contrast, may confer a windfall upon a

plaintiff whose only purpose for holding the land is to sell it for profit. Osborne, 947 P.2d at

14
1359 (citing Dan B. Dobbs, Law of Remedies § 5.2(1), 714-15 (2d ed., West 1993));

Sunburst, ¶¶ 40-44.

¶40 Texaco argued that Sunburst residents would receive a windfall if the restoration

damages exceeded the diminution in market value as nothing required the residents actually

to use the award for restoration. Sunburst, ¶¶ 40-44. Several Sunburst residents testified that

their primary objective in the case consisted of cleaning up the contaminants in their

community. Id. at ¶ 44. Texaco failed to contradict the residents’ testimony. The

uncontroverted evidence established that plaintiffs genuinely intended to restore their

property. Id. The plaintiffs’ reasons personal justified a restoration damages award in

excess of the diminution in market value. Id. at ¶ 49.

¶41 The plaintiff in Roman Catholic Church operated a low-income housing complex that

Louisiana Gas negligently had damaged through a fire. Roman Catholic Church, 618 So. 2d

at 875. In Sunburst we cited with approval the Louisiana court’s conclusion that the

plaintiff’s desire to provide housing to low income families also constituted a valid personal

reason to the plaintiff under § 929 to support restoration damages. Sunburst, ¶ 35 (citing

Roman Catholic Church, 618 So.2d at 880).

¶42 The defendant in Osborne negligently had burned trees on the plaintiffs’ property.

The plaintiffs testified that their property and the trees on their property had noncommercial

value to them. Osborne, 947 P.2d at 1360. The plaintiffs had selected the property

especially because of the wooded character of the property as a place for recreation and as a

place to retire. They had no intention of ever selling the property. Id.
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¶43 The trial court granted summary judgment for the defendant in Osborne and ruled

that diminution in market value represented the sole measure of damages for the lost trees.

Id. The Alaska Supreme Court reversed and applied the reasons personal rule. Id. The court

determined that the plaintiffs had demonstrated sufficient evidence of reasons personal to

survive a motion for summary judgment. Id. The trial court should have presented the

question to the jury of whether the plaintiffs had established a personal reason to justify

restoration costs to replace the trees and whether the plaintiffs genuinely intended to restore

the property. Id.

¶44 A trial court should grant summary judgment to establish restoration damages as the

appropriate measure of damages if reasonable minds could not differ as to whether a

temporary injury and reasons personal exist. Hill v. Cox, 41 P.3d 495, 502 (Wash. App.

2002). The trial court in Hill determined that the undisputed evidence established that Hill

had purchased the property for recreational purposes and that the lost trees provided a visual

buffer that enhanced privacy and aesthetic values. Id. The trial court properly granted

summary judgment that restoration damages constituted the appropriate measure of damages.

Id.

¶45 Like the plaintiffs in Osborne and Hill, Lampi argues that he presented sufficient

evidence of reasons personal through depositions and affidavits to support his election of

restoration damages. Osborne, 947 P.2d at 1360. Lampi testified that his property had

noncommercial value to him and that he did not intend ever to sell the property. Lampi

testified that he had specifically selected this piece of property because of the vegetation on
16
the property and because of his history hunting the land. Lampi testified that he intended to

retire on the property.

¶46 Speed did not dispute Lampi’s personal desires to restore the property before the

District Court. Speed failed to present any evidence to refute Lampi’s claim that he had

personal reasons to restore his property. Speed conceded to the District Court that he did

“not dispute Lampi’s stated future plans for the use of his property.” Speed placed little

import on Lampi’s personal reasons to restore the property. Speed’s decision to concede this

point likely stems from his position that the restoration damages rule should not apply to

Lampi’s claim for destroyed vegetation. Supra, ¶¶ 27-29.

¶47 Speed made a tactical decision to challenge the appropriateness of restoration

damages for destroyed vegetation rather than to challenge Lampi’s claims regarding the

specific elements of restoration damages. This tactical decision left Speed without a

response to Lampi’s claims. Speed did not present substantial evidence of a material fact to

refute whether Lampi had presented sufficient evidence of temporary injuries or reasons

personal. Hill v. Cox, 41 P.3d at 502.

¶48 We emphasize that these issues normally present factual questions for the jury to

resolve. Osborne, 947 P.2d at 1360. In this instance, however, Lampi presented undisputed

evidence of the temporary nature of the injury and his “reasons personal” for seeking to

restore the property. Speed opted not to challenge Lampi’s claims on these points and

instead argued unsuccessfully that damage to vegetation should not be susceptible to

17
restoration damages. These unusual circumstances entitled Lampi to judgment as a matter of

law on his claim for restoration damages.

¶49 The District Court should have concluded that restoration damages constituted the

appropriate measure of damages in this case. PPL Mont., ¶ 84. The District Court failed to

inform the parties whether it would apply the restoration damages rule established in

Restatement (Second) of Torts § 929 to Lampi’s case as a result of its indecision regarding

the appropriate measure of damages. The court’s failure to denote the proper measure of

damages shaped the parties’ trial strategies and presentations of evidence.

¶50 Lampi further argues that the District Court’s refusal to adopt the restoration damages

rule as the appropriate measure of damages in his case led to the admission of prejudicial

evidence of the alleged diminution in the market value of Lampi’s property. The District

Court denied Lampi’s motion in limine in light of its refusal to adopt restoration damages as

the only appropriate measure of damages in Lampi’s case. The District Court has not

considered whether the alleged diminution in market value of Lampi’s property qualifies as

relevant evidence if restoration damages constitute the appropriate measure of damages. We

decline to address this issue in light of the absence of any decision on the matter from the

District Court in this context. Crail Creek Assocs., LLC v. Olson, 2008 MT 209, ¶ 35, 344

Mont. 321, 187 P.3d 667. The parties may address this evidentiary issue as needed on

remand. We likewise decline to address Lampi’s challenge to the District Court’s jury

instruction for these same reasons.

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¶51 We reverse and remand for a new trial to allow the jury to determine what reasonable

amount of damages would restore Lampi’s property to its pre-fire condition.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ JAMES C. NELSON

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