Blust v. Lamar Advertising Co. ( 2004 )

{¶ 48} I respectfully dissent from the majority's holding that the trial court properly submitted the punitive damages issue to the jury. In my view, the trial court erred in overruling Lamar's motions for a directed verdict and judgment notwithstanding the verdict on that issue.

{¶ 49} Before submitting the punitive damages issue to the jury, the trial court was required to find that reasonable minds could differ as to (1) whether Lamar employee Melissa Kramer consciously disregarded the Blusts' rights and (2) whether Kramer was aware that her acts had a great probability of causing substantial harm. Preston v. Murty (1987),32 Ohio St.3d 334, 336, 512 N.E.2d 1174. The evidence in the present case supports a finding that Kramer acted without the Blusts' permission and ordered the removal of trees that she knew were on the Blusts' property. Therefore, a trier of fact reasonably could find that she consciously disregarded the Blusts' property rights.

{¶ 50} My disagreement with the majority concerns the second requirement. Although I do not condone Lamar's destruction of the Blusts' trees, the record does not contain evidence from which a juror reasonably could find that Kramer was aware her acts had a great probability of causing substantial harm. Kramer ordered the clearing of a small area of scrub brush and trees along a rural road. All of the trees were growing wild in a fence line that separated the Blusts' 75.8-acre farm from another large field. Just seventeen of the trees were of any significant size, and even John Blust really only cared about three or four walnut trees in that grove.

{¶ 51} Viewing the evidence in a light most favorable to the Blusts, I do not believe reasonable minds could find that Kramer knew removing the trees had a great probability of causing substantial harm. Kramer knew nothing of any plan to subdivide the farmland for residential purposes and to use the tree line as a screen, even assuming for present purposes that such a plan existed. Until after the cutting, she also knew nothing about the presence of the walnut trees, or of John Blust's future aspirations to harvest the wood for its unspecified veneer value. Likewise, Kramer could not have anticipated the Blusts' desiring to replant the wild trees on the edge of their farmland. The volunteer trees served no apparent purpose and had no apparent value. In this regard, Lamar presented uncontroverted testimony that trees on the edge of a farm field typically are removed because their branches interfere with crop yields by causing shade, and their roots interfere with plant growth and cultivation. Finally, the record does not support a finding that Kramer knew removing the trees likely would have a negative impact on the Blusts' property value. After reviewing pictures of the scene, I do not believe that a reasonable juror could find any real value in the trees, other than their "stump" value of $105.

{¶ 52} In short, a review of the record reveals no reason for Kramer to suspect that substantial harm would befall the Blusts, neither of whom even resides on the land, if a small portion of the tree line was removed. Because reasonable minds could not differ as to whether Kramer was aware that her conduct had a great probability of causing substantial harm, I believe the trial court erred in overruling Lamar's motions for a directed verdict and judgment notwithstanding the verdict. As a result, I would sustain Lamar's first assignment of error on cross-appeal and overrule all other assignments of error as moot.