Petition for Writ of Certiorari — Ramsey Associates, Inc. v. Coty

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Suprem2 So:>. U3

ii, DP

MAY 12 1988

JOSEPH F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

RAMSEY ASSOCIATES, INC.,

NORMAND RAMSEY and RAYMOND RAMSEY,

Petitioners

VICTOR and MARY COTY,

DOROTHY NELSON, d/b/a STOWE COUNTRY SHOP and

ANTON and PAMELA FLORY,

d/b/a DIE ALPEN ROSE MOTEL,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF VERMONT

*Peter L. Murray

Thomas C. Newman

Richard L. O’Meara

MURRAY, PLUMB & MURRAY

75 Pearl Street

Portland, Maine 04101

(207) 773-5651

Counsel for Petitioners

May 11, 1988 *Counsel of Record

QUESTIONS PRESENTED

1. Does the imposition by the State of Vermont of civil

nuisance liability for conditions of unsightliness intentionally

created as an expression of protest against government action

constitute an abridgment of the freedom of speech as

guaranteed by the First and Fourteenth Amendments to the

Constitution of the United States?

2. Under the circumstances of this case, is the imposition of

an award of $380,000.00 in punitive damages in addition to

compensatory damages an ‘‘excessive fine’* in violation of the

Eighth and Fourteenth Amendments to the Constitution of the

United States?

LIST OF PARTIES

The parties to the proceedings below were the Petitioners,

Ramsey Associates; Inc., Normand Ramsey and Raymond

Ramsey, and the Respondents, Victor and Mary Coty, Donald

and Dorothy Nelson, and Anton and Pamela Flory. Mary Coty

and Donald Nelson died during the pendency of the case below.

The Respondents before this Court include Victor Coty,

Dorothy Nelson, and Anton and Pamela Flory, the surviving

Plaintiffs below.

Petitioner Ramsey Associates, Inc. has no parent companies,

subsidiaries or affiliates to list pursuant to Rule 28.1.

Ao st oy ee

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TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS INVOLVED............ 3

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REASONS FOR GRANTING THE WRIT ...................5. 6

I. The imposition by the State of Vermont of civil nuisance

liability for conditions of unsightliness intentionally

created as an expression of protest against governmental

action constitutes an abridgment of the right of free

speech and expression guaranteed by the First Amend-

ment to the United States Constitution ...................... 6

II. Under the circumstances of this case, the imposition of

an award of $380,000.00 in punitive damages in addition

to compensatory damages constitutes an ‘‘excessive

fine’’ in violation of the Eighth Amendment to the

SE ED CAIRN Scidvcnecndccecsececccsustcennccnsscs 10

sca ndietadcneusikhennsinnbidendienseheeedeckumnes 15

APPENDIX (Opinion and Judgment of the Supreme

Court of the State of Vermont, Appellant’s

Motion for Reargument and Memorandum of

Law in Support of Motion for Reargument,

Findings and Conclusions of Law of the

Ne al ic db aaa pu aecuaabedies la

TABLE OF AUTHORITIES

Cases: Page

Aetna Life Ins. Co. v. Lavoie, 106 S. Ct. 1580 (1986) . 11

Alabama Power Co. v. Cantrell, 507 So.2d 1295

EP BID an ucdevenscscascacsdansancsccnsaaasencosacaconeneas 11

Bankers Life and Casualty Co. v. Crenshaw, No.

DT Or as COMUNE dh costncaxecssasncsancnpdudesteasesiiunan 11, #2

Colonial Pipeline Co. v. Brown, 365 S.E.2d 827

BEI, Fa cckanktnnnsensecccncqsncsdncsessncdabusiisasakenses 11, 13

Edwards v. South Carolina, 372 U.S. 229 (1963) ....... 9

Electrical Workers v. Foust, 442 U.S. 42 (1979) ........ 15

Gertz v. Robert Welch, Inc. , 418 U.S. 323 (1974) ...... 13

Ingraham v. Wright, 430 U.S. 651 (1977) ............204: 11, 12, 13

Napro Development Corp. v. Town of Berlin, 376

PF i FETE sis kcgskinedcisicvhaiassimnsebipcancnes 8

Palmer v. A. H. Robins Co., 684 P.2d 187 (Colo.

SEIN cinrcustubanuswuadestdescrentanchasssenbanabuacnassminaes 11

Spence v. Washington, 418 U.S. 405 (1974) ............. 9

Tetnan v. A. H. Robins Co., 738 P.2d 1210 (Kan.

RETARD AA oS RRN NG EOD sR ET Soceleene R E 11

Tinker v. Des Moines School Dist., 393 U.S. 58

TR aI RTE cree ORO RD PD pa re es RE Yy

Fie V. EO, FIO Bk BO Ce isc csnsissnisdsnsncncanas 12

Underwriters Life Ins. Co. v. Cobb, 746 S.W.2d 810

CR FUR, Te andasccnascsdntavunstnanasadetosantnctssiacs 1]

United States v. O’Brien, 391 U.S. 367 (1968) .......... -)

Woodstock Burying Ground Ass’n v. Hager, 68 Vt.

ER, Be is Ge CD hice bannedncnaccdcscbaceniuasiaciecsess 8

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

RAMSEY ASSOCIATES, INC.,

NORMAND RAMSEY and RAYMOND RAMSEY,

Petitioners

VICTOR and MARY COTY,

DOROTHY NELSON, d/b/a STOWE COUNTRY SHOP and

ANTON and PAMELA FLORY,

d/b/a DIE ALPEN ROSE MOTEL,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF VERMONT

The Petitioners, Ramsey Associates, Inc., Normand Ramsey

and Raymond Ramsey, respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the Supreme Court

of the State of Vermont entered in the above-entitled proceed-

ings on February 12, 1988.

OPINIONS BELOW

The opinion of the Supreme Court of the State of Vermont is

reported at A.2d and is reprinted in the appendix

hereto, p. la, infra.

The findings and judgment of the Superior Court of the State

of Vermont (Levitt, J.) have not been reported. They are

reprinted in the appendix hereto, p. 33a, infra.

JURISDICTION

This action was originally commenced by the Respondents in

the Superior Court of the State of Vermont seeking an injunc-

tion and compensatory and punitive damages based upon

maintenance by the Petitioners of a ‘‘nuisance’’ in the form of a

pig farm on the Petitioners’ property in Stowe, Vermont.

After a non-jury trial, the Superior Court awarded the

Respondents the injunctive relief sought plus very substantial

compensatory and punitive damages. On appeal to the Supreme

Court of the State of Vermont, the basic legitimacy of the

Superior Court award was upheld, although the judgment for

punitive damages against Raymond Ramsey was vacated and

the case was remanded to the Superior Court for reconsidera-

tion of the amount of punitive damages that should be awarded

against Normand Ramsey.

Thus, although reconsideration of the amount of punitive

damages to be awarded against Normand Ramsey has not yet

occurred, there is a final judgment on the issues presented to

this Court for review, namely the constitutionality of the

damage awards based upon the First, Eighth, and Fourteenth

Amendments to the United States Constitution. There is no ac-

tion within the scope of the remand to the Vermont Superior

Court which would vitiate any of the issues raised by the Ver-

mont Supreme Court decision for which review is here sought.

The Vermont Supreme Court decision was issued on

February 12, 1988. The jurisdiction of this Court to review thé |

judgment of the Vermont Supreme Court is invoked under 28

U.S.C. § 1257(3).

——

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution First Amendment:

Congress shall make no law .. . abridging the

freedom of speech... .

United States Constitution Eighth Amendment:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments in-

flicted. -

United States Constitution Fourteenth Amendment, Section 1:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of

law; nor deny any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

Ramsey Associates, a corporation owned and operated by

Normand Ramsey of South Burlington, Vermont, at one time

owned and operated several motels located in various northern

New England states. In 1981 the corporation purchased an open

tract of land along the Mountain Road in the town of Stowe,

Vermont, upon which it proposed to construct an eighty-seven

unit motel. Stowe, Vermont was at that time, and still is, highly

developed with motels, shops and similar enterprises ancillary to

a major ski resort.

Although the municipal zoning of the property in question

permitted motel use, a permit was also required from the State

under the Vermont Site Location Law (Act 250).

Ramsey’s application for the Act 250 permit was sharply

challenged before the regional board by various Stowe

residents, neighbors and abutting landowners, including the

Respondents. Of the Respondents, the Florys owned and

operated a motel directly across the Mountain Road from the

proposed project and Mrs. Nelson operated a shop which sold

cheese and tourist novelties next door to the Florys. After

lengthy proceedings, the Act 250 board denied the requested

permit citing as grounds for its decision ‘‘aesthetics’’ and insuf-

ficient provision for disposal of sanitary waste.

Promptly following the issuance of the Act 250 board deci-

sion, the Ramseys fenced the land and established a pig farm on

the property. The establishment and operation of the pig farm

were at all times in accord with the land use and aninval husban-

dry regulations of the State of Vermont. One of the first actions

of the Ramseys after fencing the property was the dumping of a

considerable quantity of manure around the perimeter of the

property to fertilize the land to grow corn. The existence and the

smell of the manure offended the Respondents and they im-

mediately brought suit to enjoin the pig farm and the use of

manure. Their request for a preliminary injunction was denied,

but the suit was nevertheless maintained.

Although the pig farm did comply with all applicable land use

laws and regulations, its appearance was far from appealing.

That circumstance, as well as the timing of the farm, convinced

the courts below that the unaesthetic visual effects were inten-

tional and in reaction to the unfavorable decision of the Act 250

board on the motel permit. The smell of manure soon abated,

but the Respondents’ umbrage at the appearance of the farm

was fed by a series of conditions on the farm property which ap-

peared to the Respondents as visually unaesthetic, unappetiz-

ing, and unappealing. The farm was not maintained as a ‘‘neat

as a pin’’ model establishment. And the Respondents, who kept

the farm under constant observation, testified to witnessing

farm practices which they felt were cruel and neglectful to the

animals involved. All of this display, they felt, was intended to

ridicule them and their opposition to the Ramseys’ motel pro-

posal.

Despite Petitioners’ assertion at trial that the farm operation

was a legitimate agricultural enterprise, the trial judge expressly

found that the creation of the unappetizing visual effects was in-

tentional and in reaction to the denial of the request for a motel

permit. Although the record contained remarkably little

evidence of actual monetary damages, the presiding justice

awarded liberal compensatory damages for ‘‘emotional upset,

discomfort, annoyance and embarrassment’’ in favor of each of

the Respondents. Furthermore, because of the deliberate quali-

ty of the Petitioners’ protest, the judge levied a punitive damage

award of $380,000.00 against all three Petitioners.

On appeal to the Vermont Supreme Court, the Petitioners

challenged the appropriateness of awarding nuisance damages

for unaesthetic visual conditions. Cited in support cf the Peti-

tioners’ argument was Vermont law, including a case suggesting

that the law of nuisance in such circumstances may indeed be

restrained by the protections afforded by the First Amendment.

At oral argument Petitioners’ counsel argued to the Vermont

Supreme Court that if Mr. Ramsey’s pig farm were determined

to be a deliberate response to the denial of the motel permit,

chen such a protest would be protected by the guaranteees of

free speech and free expression contained in the First Amend-

ment to the United States Constitution. The Petitioners also

protested the award of puniiive damages in brief and at oral

argument on the basis of the Eighth Amendment to the United

States Constitution.

The Vermont Supreme Court, however, apparently as im-

pressed as the Court below with the intentional nature of the

Petitioners’ conduct, sustained the damage award against the

First Amendment claim and also sustained the award of

punitive damages against the Eighth Amendment claim. The

punitive damages awarded by the trial court against Raymond

Ramsey, however, were vacated because of insufficient proof of

his intentional participation in the statement. The Superior

Court had also erroneously applied a Vermont rule which re-

quired that an award of punitive damages against multiple

defendants be based upon the net worth of the least culpable

defendant. The Supreme Court overruled this prior rule and

remanded the case for consideration of the punitive damages

with respect to the two more wealthy and more culpable defen-

dants remaining in the case.

The case is now pending before the Vermont Superior Court

for this reconsideration. The case is also ripe for review by this

Court on certiorari. On the constitutional issues raised the Ver-

mont Supreme Court has finally spoken. There is nothing which

the Vermont Superior Court can do within the scope of the re-

mand to vitiate the constitutional infringements alleged.

REASONS FOR GRANTING THE WRIT

The imposition by the State of Vermont of civil nuisance liabili-

ty for conditions of unsightliness intentionally created as an ex-

pression of protest against governmental action constitutes an

abridgment of the right of free speech and expression

guaranteed by the First Amendment to the United States Con-

stitution.

If permitted to stand, the decision of the Vermont Supreme

Court in this case would be precedent for serious curtailment of

a citizen’s right to employ nonverbal modes of expression to

protest governmental action. In the context of recreational

development in rural Vermont, the visually offensive pig farm

created by the Ramseys to protest the arbitrary and irrational

governmental decision on their motel application is a classic

form of constitutionally protected expression. It was so inter-

preted by their neighbors. It was so interpreted by the couris.

Both the Vermont Superior Court and the Vermont Supreme

Court placed great emphasis on the intentionality of the

eyesore. Apparently if the Ramseys had permitted the offensive

conditions to exist by negligence and without a particular pro-

test motive, the penalty would have been less severe. However,

because the pig farm was perceived as a deliberate statement

protesting and challenging the land use restrictions supported by

the neighbors and imposed by the government, the Ramseys

were found culpable and legally liable for substantial damages.

This case presents the picture of a land developer proposing

what seemed to him a perfectly appropriate project in a locality

already well-developed with similar commercial and recrea-

tional enterprises. The proposed motel was in conformity with

local zoning and land use regulations. The project, however,

was also subject to ‘‘Act 250’’, a Vermont environmental pro-

tection statute which requires special permits issued by regional

boards even for projects such as motels. It is easy to imagine the

irony which the developer must have felt to be opposed before

the regional board not only by citizens from the resort town of

Stowe, but also by neighbors who themselves had developed

their property for similar business purposes. As was testified to

at length before the court below, the Mountain Road in Stowe is

a highly developed tourist business area. The Ramsey property

was one of the last vacant parcels on the road. This was scarcely

a despoilation of virgin wilderness.

It is not hard to imagine that the developer would feel some

impulse to protest a decision denying his project on the grounds

of ‘‘aesthetics’’. And what would be a more logical and forceful

statement of protest than to produce on the land a use entirely

legal and in accord with all regulations, yet also unabashedly

unaesthetic! Of all agricultural activities, the pig farm conjures

up in the mind the most redolent image of unaesthetic

agricultural practices. Although Mr. Ramsey did indeed operate

farms in other parts of Vermont, neither the Superior Court nor

the Supreme Court were under any impression other than that

his choice of pigs as livestock was intentional.

The protest nature of the farm was reemphasized and recon-

firmed by many aspects of the farm which the courts below

found were deliberately made unaesthetic. Trenches dug on the

farm property were left open and not filled in, a large tank was

put on the property and was apparently not used, the ‘‘farm-

house’’ was a small mobile home placed on the property, pigs

were-fed near the perimeter of the fence in full view of all who

would be passing by. All of these facts found by the courts

below bespoke the character of this farm as a constitutional

visual protest against the arbitrary action of the Act 250 board.

Yet it was precisely the intentionality of these visual effects

which made them most objectionable in the eye of the courts

below. It was the intentional nature of the protest which ap-

parently justified the compensatory and punitive damages

awarded in favor of those Act 250 objectors who were most of-

fended by the protest.

Prior to the Vermont Supreme Court decision in this case, the

decisional law of the State of Vermont had refused to recognize

a purely visual condition as a nuisance. In decisions concerning

auto graveyards, cemeteries, and most recently, pornographic

bookstores, the Vermont Supreme Court had repeatedly —

declared that:

The law will not declare a thing a nusans [sic] because it is

unsightly and disfigured, nor because it is unpleasant to

the eye and a violation of the rules of propriety and good

taste, nor because the property of another is rendered less

valuable. No fanciful notions are recognized. The law does

not cater to men’s tastes, nor consult their convenience

merely.

Woodstock Burying Ground Ass’n v. Hager, 68 Vt. 488, 489, 35

A. 431, 432 (1896) (quoted in Napro Development Corp. v.

Town of Berlin, 376 A.2d 342, 347 (Vt. 1977)). Embedded in

this caselaw’s reluctance to adjudge private eyesores as

nuisances is the same deference to expressive activities formally

embodied in the guarantees of the First Amendment. As the

visually offensive activity becomes more purposeful, and relates

in some way to a statement, then its status as protected expres-

sion becomes more clear.

in this case, the courts below found and repeatedly stressed

that the action of the Ramseys in establishing the piggery was a

direct reaction to the Act 250 proceedings and the denial of their

permit. The Superior Court found that the operation of the

farm had no significant commercial purpose. The reason for its

existence was to dramatize the irony of the Act 250 board’s deci-

sion denying the permit based upon ‘‘aesthetics’’.

This Court has long held that the guarantees of the First

Amendment, as applied to the states by the Fourteenth Amend-

ment, protect both speech and nonverbal expression, especially

when such expression amounts to a protest against governmen-

tal action. See, e.g., Spence v. Washington, 418 U.S. 405 (1974)

(displaying upside down American Flag with superimposed

peace symbol); Tinker v. Des Moines School Dist., 393 U.S. 58

(1969) (wearing black armbands to protest Vietnam War); Ea-

wards v. South Carolina, 372 U.S. 229 (1963) (demonstration to

protest discrimination against blacks). The touchstone appears

to be that the more clearly an act can be seen as a statement of

protest, the more likely it is that such act is protected. While not

every type of conduct is protected by the First Amendment’s

guarantee of free expression, see, e.g., United States v. O’Brien,

391 U.S. 367 (1968) (prosecution for burning draft card),

nonverbal expression with a purely visual impact has been

routinely protected.

There can be no doubt that the creation of the Stowe piggery

was an intentional act of protest as found by the Vermont

courts. The visual message of the farm was clear. Although it

may have caused chagrin or even upset to those who received

the message, the sending of that message was protected by the

First Amendment.

This case presents the issue of whether a state can stifle visual

citizen protest under the rather broad and general rubric of

private nuisance law. Neither the State of Vermont nor those

who support a particular governmental action should be permit-

ted to penalize protest of that decision simply because the pro-

test causes chagrin, humiliation or embarrassment. This case

presents the opportunity for this Court to make clear the rela-

tionship between assertive conduct protesting a perceived in-

justice and actual invasions that may properly serve as the basis

for a financial recovery. The decision of the Vermont Supreme

Court to award compensatory and punitive damages for what

amounted to no more than a starkly visual protest against a

governmental land use decision is contrary to the United States

Constitution and should be reviewed and reversed.

Il.

Under the circumstances of this case, the imposition of an

award of $380,000.00 in punitive damages in addition to com-

pensatory damages constitutes an ‘‘excessive fine’’ in violation

of the Eighth Amendment to the United States Constitution.

In this case, the Supreme Court of the State of Vermont has

sanctioned an award of some $380,000.00 in punitive damages

in favor of the Respondents despite the fact that these people

have already received generous compensatory damages for their

humiliation, embarrassment and emotional upset caused by the

Petitioners’ pig farm protest.

In recent cases, however, the constitutional propriety of

grossly disproportionate punitive damage awards has increas-

ingly been called into question as defendants have begun to

challenge such awards under the Excessive Fines Clause of the

Eighth Amendment. Although no court has yet struck down an

award of punitive damages based solely on the Eighth Amend-

ment to the Federal Constitution, at least one court has reached

this result by employing an equivalent clause contained in its

State Constitution, see Colonial Pipeline Co. v. Brown, 365

S.E.2d 827, 831 (Ga. 1988), and some judges have stated that

the Eighth Amendment might be an appropriate yardstick

against which to measure the propriety of punitive damage

awards, see, e.g., Alabama Power Co. v. Cantrell, 507 So.2d

1295, 1307-09 (Ala. 1986) (Maddox, J., concurring in part,

dissenting in part).'

This Court has already recognized the pressing need to deter-

mine whether the Eighth Amendment limits the ability of trial

courts and juries to award punitive damages. In Aetna Life Ins.

Co. v. Lavoie, 106 S. Ct. 1580 (1986), this Court heard argu-

ment on this precise issue, but in the end vacated and remanded

the judgment of the Alabama Supreme Court on other grounds.

Writing for the Court, however, Chief Justice Burger noted that

whether the $3.5 million punitive damage award in that case was

‘impermissible under the Excessive Fines Clause of the Eighth

Amendment . . . raise[d] important issues which, in an ap-

propriate setting, must be resolved... .’’ Jd. at 1589 (emphasis

supplied).

Presently pending before this Court is the case of Bankers

Life and Casualty Co. v. Crenshaw, No. 85-1765, which was

argued on November 30, 1987. The Bankers Life case also raises

the issue of whether an inordinately large punitive damage

‘Other courts, typically relying upon this Court’s holding that the Cruel and

Unusual Punishment Clause of the Eighth Amendment applies only to

criminal cases, Ingraham v. Wright, 430 U.S. 651 (1977), have determined that

the Eighth Amendment has no application in civil cases. See, e.g., Tetnan v.

A. H. Robins Co., 738 P.2d 1210 (Kan. 1987); Underwriters Life Ins. Co. v.

Cobb, 746 S.W.2d 810 (Tex. App. 1988); Palmer v. A. H. Robins Co., 684

P.2d 187 (Colo. 1984).

award fails to pass muster under the Eighth Amendment. If the

Court should find that case to be an inappropriate vehicle for

deciding this important constitutional issue, then certiorari

should be granted in the instant case. Unlike in the Bankers Life

case, there can be no argument here that the Eighth Amendment

issue was not raised below. Petitioners have properly preserved

this constitutional issue and it was expressly addressed by the

Vermont Supreme Court. See p. 22a, infra.

Ingraham vy. Wright, 430 U.S. 651 (1977), the Court’s seminal

decision with respect to the applicability of the Eighth Amend-

ment to cases not involving criminal punishment, deals only

with the applicability of the Eighth Amendment’s Cruel and

Unusual Punishment Clause to civil cases. Jd. at 653 (‘‘whether

the paddling of students as a means of maintaining school

discipline constitutes cruel and unusual punishment in violation

of the Eighth Amendment’’). Even so, the majority opinion in

that case left open the possibility that ‘‘[sJome punishments,

though no labeled ‘criminal’ by the State, may be sufficiently

analogous to criminal punishments in the circumstances in

which they are administered to justify application of the Eighth

Amendment.”’ Jd. at 669 n.37.

In addition, four justices dissented from the Jngraham deci-

sion. Justice White, in his persuasive dissent, finds it ‘‘plainly

wrong’’ to distinguish between criminal and noncriminal

punishment for the purposes of the Eighth Amendment. Citing

Trop v. Dulles, 356 U.S. 86, 96 (1958), Justice White states that:

The relevant inquiry is not whether the offense for

which a punishment is inflicted has been labelled as

criminal, but whether the purpose of the deprivation

is among those ordinarily associated with punish-

ment, such as retribution, rehabilitation, or deter-

rence.

Ingraham v. Wright, 430 U.S. at 868-87 (White, J., dissenting).

Justice White concludes that, ‘“‘[iJn fact, as the Court

recognizes, the Eighth Amendment has never been confined to

criminal punishments.’’ Jd. at 688.

Punitive or exemplary damages—‘“‘private fines levied . . . to

punish reprehensible conduct and to deter its future

occurrence,’’ Gertz v. Robert Welch, Inc., 418 U.S. 323, 350

(1974)—serve the deterrent purpose of criminal punishment

rather than the compensatory goal of civil damage remedies. See

Colonial Pipeline, 365 S.E.2d at 831. There is a strong argu-

ment, therefore, supporting the view that punitive damage

awards should be measured against the constitutional standards

imposed by the Eighth Amendment and struck down or reduced

when they are found to be excessive.

The time has come for this Court to address this important

question and declare that excessive punitive damage awards

based solely upon common law causes of action cannot be sus-

tained under the Eighth and Fourteenth Amendments to the

United States Constitution. Punitive damages are awarded for

reasons that are obviously penal or retributive in nature. The

absence of any statutory or other standards raises the specter

that courts will be free to sanction the type of excessive fines

that are prohibited by the Eighth Amendment unless this Court

declares that such awards are subject to constitutional review.

This case furnishes a prime example of why discretionary

awards of punitive or exemplary damages can no longer be con-

stitutionally sanctioned. Stated simply, Petitioners sought to

build a motel on their property in Stowe, Vermont. When the

state environmental board denied their application based on

aesthetics, their reaction was a classic example of New England

individualism. The protest pig farm was so effective in getting

its message across that it became an ironic tourist attraction in

the middle of a tourist region. By building a pig farm where he

was not permitted to build a motel, farmer Ramsey sought to

expose the illogicality and arbitrariness of the board’s decision

and to hold the board’s decision up to ridicule.

Undoubtedly Respondents were offended by the smell as well

as the sight of the piggery in lieu of a motel. But what really

stung was the message and the derision implicit in the entire

operation.

To the extent there was an invasion of odors or even flies

from the farm, such an invasion would be properly compens-

able under the established common law of nuisance. But given

the obvious character of the farm and the obviousness of the

joke, where are the grounds for the massive punitive damages

awarded in this case? What egregious misconduct toward the

plaintiffs justified the imposition of such a substantial penalty?

The likely grounds for the punishment are alluded to

repeatedly in the opinions of both the trial court and the ap-

pellate court. Major sources of the Respondents’ visual affront

were observations they made of neglect and mistreatment of

livestock on the Stowe farm. Both of the opinions excoriate the

petitioners for mistreating animals as a part of this macabre

protest. It matters little that, although the farm was inspected

on more than one occasion, it was never cited for any violation

of the animal husbandry laws of the State of Vermont.

If one accepts some of the assertions of the Respondents con-

cerning their observations, it is very difficult to feel anything

but loathing for the petitioners. The indignation of both courts

was fueled, if not sparked, by what undoubtedly appeared to

the judges to be needless suffering of innocent animals as a part

of the Ramseys’ protest prank. But the suffering of the animals,

if indeed the animals did suffer, was not a harm for which

Respondents ought to recover. Respondents were not damaged

thereby. Any suffering on their part were purely out of sym-

pathy and not out of actual danger or damage to themselves.

None of us, of course, including Mr. Ramsey, condones the

mistreatment of animals for any purpose. But if such mistreat-

ment occurs, it should not be controlled by awarding immense

punitive damage awards to angry neighbors. This case

demonstrates that the free availability of discretionary punitive

damages to redress common law invasions permits a court to

punish behavior other than that which is before it for adjudica-

tion, and allows an adjudicator free reign to respond to emotion

without the salutory restraint of required articulation. Justice

Thurgood Marshall has warned of the danger that ‘‘punitive

damages may be employed to punish unpopular defendants.’’

Electrical Workers v. Foust, 442 U.S. 42, 50-51 n.14 (1979).

This case provides the vehicle whereby this Court can impose

meaningful bounds and restrictions upon the availability of this

generalized private punishment by addressing and recognizing

the limitations imposed by the Eighth Amendment’s Excessive

Fines Clause.

CONCLUSION

For the foregoing reasons, this petition for certiorari should

be granted. The novel constitutional issues concerning whether

Petitioners’ conduct is protected expression under the First

Amendment, so as to preclude private recovery for a visual

nuisance, and whether the award of punitive damages violates

the Excessive Fines Clause of the Eighth Amendment, both de-

mand this Court’s immediate attention.

Respectfully submitted,

*Peter L. Murray

Thomas C. Newman

Richard L. O’Meara

MURRAY, PLUMB & MURRAY

75 Pearl Street

Portland, Maine 04101

(207) 773-5651

Counsel for Petitioners

May 11, 1988 *Counsel of Record

APPENDIX

SUPREME COURT

FORM NO. |

ENTRY ORDER

SUPREME COURT DOCKET NO. 85-399

June Term, 1987

Victor and Mary Coty, Donald APPEALED FROM:

and Dorothy Nelson d/b/a Lamoille Superior Court

Stowe Country Shop and Anton

and Pamela Flory d/b/a Die Docket No. $134-82Lc¢

Alpen-Rose Motel

Vv.

Ramsey Associates, Inc.;

Normand Ramsey and

Raymond Ramsey

In the above entitled cause the Clerk will enter:

Affirmed in part and reversed in part; the cause is remanded

for reconsideration of the punitive damages awards.

FOR THE COURT:

Dissenting: S/

Louis P. Peck, Associate Justice

Concurring:

John A. Dooley, Associate

Justice

Albert W. Barney, Chief

Justice (Ret.),

Specially Assigned

F. Ray Keyser, Associate Justice

(Ret.), Specially Assigned

a .

Edward J. Costello, District

Judge (Ret.), Specially Assigned

NOTICE: This opinion is subject to motions for reargument

under V.R.A.P. 40 as well as formal revision before publication

in the Vermont Reports. Readers are requested to notify the

Reporter of Decisions, Vermont Supreme Court, 111 State

Street, Montpelier, Vermont 05602 of any errors in order that

corrections may be made before this opinion goes to press.

Vt. Supreme Court

Filed in Clerk’s Office

Feb. 12, 1988

}

No. 85-399

Victor and Mary Coty, Donald Supreme Court

and Dorothy Nelson d/b/a

Stowe Country Shop and Anton On Appeal from

and Pamela Flory d/b/a Die Lamoille Superior Court

Alpen-Rose Motel

Vv. June Term, 1987

Ramsey Associates, Inc.;

Normand Ramsey and

Raymond Ramsey

Linda Levitt, J.

Stevens & Elliott, Stowe, for plaintiffs-appellees

Robert D. Rachlin and Michael J. Gannon of Downs Rachlin &

Martin, Burlington, and Peter L. Murray and Thomas C. New-

man of Murray, Plumb & Murray, Portland, Maine, for

defendants-appellants Ramsey Associates, Inc., and Normand

Ramsey ,

William B. Gray and Michael O. Hill of Sheehey, Brue & Gray,

Burlington, for defendant-appellant Raymond Ramsey

PRESENT: Peck and Dooley, JJ., and Barney, C.J. (Ret.),

Keyser, J. (Ret.) and Costello, D.J. (Ret.), Specially

Assigned

PECK, J. In the underlying nuisance action, plaintiffs al-

leged that defendants had established a highly offensive pig

farm on a parcel of land in Stowe in retaliation for their opposi-

tion to a motel that defendants had planned to build on the site.

Plaintiffs were residents and small business proprietors owning

land immediately adjoining or across the road from the farm.

The suit was based on theories of nuisance and trespass. After

a bench trial, the court awarded plaintiffs compensatory and

punitive damages and enjoined any further unreasonable farm

operations. Defendants appealed to this Court; we affirm in

part and reverse in part.

Defendants filed separate briefs on appeal, raising a

multitude of issues for our consideration. First, they claim that

the trial court failed to apply the correct legal standard in the

nuisance determination, arguing that any interference with

plaintiffs’ use and enjoyment of their properties was brief and

insubstantial; that neither unsightliness nor malice is a proper

basis for a finding of nuisance; and that the evidence adduced at

trial was insufficient to support the court’s conclusion. Defen-

dants also attack the award of punitive damages, contending

that the evidence does not support a finding of actual malice,

that the award was excessive and violates both state and federal

Constitutions. Defendant Raymond Ramsey argues that the

trial court failed to provide clear statements of the method used

in assessing damages and of the weight accorded to the various

factors. Finally, defendant Normand Ramsey complains that

plaintiffs Anton and Pamela Flory were not entitled to bring an

action in the name of their motel because they had not

registered to do business in the motel’s name.

Normand Ramsey is the president and sole shareholder of

defendant Ramsey Associates, Inc. (corporation), and his son,

Raymond Ramsey, is the vice-president. The corporation owns

and operates two large farms, a chain of motels, a nursing

home, and an automobile supply store. In 1981, Normand

Ramsey purchased, in the name of the corporation, an open

tract of land along the Mountain Road in the town of Stowe. In

the following year, Raymond Ramsey, also acting in the cor-

poration’s name, applied for an Act 250 permit to construct a

seventy-nine unit motel on the parcel.

Plaintiffs Victor and Mary Coty reside on property adjoining

the pig farm. Plaintiff Dorothy Nelson owns a gift and gour-

ment food shop, and plaintiffs Anton and Pamela Flory own a

motel and residence; the Nelson and Flory properties are

situated across the road from the farm. Plaintiffs formed a

committee to oppose the planned motel and attempted to pur-

chase the land, a large open meadow, for preservation purposes.

Defendants, however, refused to sell.

In Late October, 1982, construction of a motel on the site was

approved under Act 250, but the approval was limited to fifteen

units rather than the seventy-nine proposed. Defendants were

disturbed by this ruling, and they began preparations to

establish an extensive pig farm on the land. Raymond Ramsey,

acting on behalf of the corporation, applied successfully for a

zoning permit to operate the farm, a permitted use under the

provisions of Stowe’s zoning ordinance.

Shortly after the Act 250 ruling was received, a large, rusty

storage tank was placed in the meadow. This tank was never

used. A few days later, the Ramseys and some workmen erected

a fence around the parcel. When Mrs. Coty inquired as to the

purpose of the fence, Normand Ramsey replied tersely: ‘‘Pigs!’’

On November 2 and 3, approximately sixteen truckloads of wet

chicken manure, averaging thirteen cubic yards each, were

dumped along a narrow strip directly across from the Nelson

and Flory properties. The truck drivers had been instructed by

Normand Ramsey to dump the manure along this particular

strip, and Raymond Kamsey directed the dumping of the first

truckload. The drivers used the Florys’ driveway to turn their

vehicles around, and both the driveway and the road were

covered with manure. The dumping was halted when a tem-

porary restraining order was served upon one of the drivers,

who told police that the Ramseys had finally ‘‘gotten even’’

with plaintiffs.

At the subsequent hearing, the Ramseys testified that the

manure would be used as fertilizer over an area of four acres,

and the court declined to issue a preliminary injunction.

However, the mounds of manure were merely leveled off within

an area of one-half acre. In the spring of 1983, approximately

eleven to thirteen more truckloads of chicken manure were

delivered, and most of these loads were deposited along the

same strip of land. An expert produced by the plaintiffs

testified, and the court found, that the resulting supply of fer-

tilizer was so grossly in excess of the recommended application

that it would kill any attempted crop. The manure encouraged

an infestation of flies that plagued plaintiffs’ properties during

the spring, summer, and fall of 1983 and 1984. A powerful

stench also engulfed the area, eventually requiring the Florys to

purchase air conditioners for their motel.

In late November of 1982, approximately one hundred pigs

_ and cows were delivered to the property along with a house

trailer and ten or more junked automobiles. The animals were

fed at a place closest to plaintiffs’ properties. In December of

1982, defendant Normand Ramsey telephoned Mrs. Nelson on

two occasions and told her that serious consequences would

follow if she continued her opposition to the motel.

During the winter of 1982, the animals had inadequate

shelter, food and water and, as a result, became sick and lame.

Mrs. Nelson made an offer to provide water, but was turned

down. Animals died, and decomposing carcasses were left lying

around.

With variations, the conditions that began in November, 1982

continued up until the spring of 1985. The manure delivery in

1983 resulted in manure that was over three feet deep in places.

The smell and resulting flies continued through 1984.

Because the pigs were not properly separated, the boars ming-

led with the piglets and attacked them. Roosters were penned

together so that they pecked each other to death. By the fall of

1984, the property contained over two hundred sickly animals

along with over twenty carcasses of dead pigs, piglets, sheep and

a goat. The dead animals were finally placed in an uncovered pit.

Many of the piglets born in the winter of 1984-85 died; eight to

ten burlap bags filled with piglet carcasses were removed. Nor-

mand Ramsey knew of these conditions and took few, if any,

steps to improve them until just before the case came to trial.

The trial court found that defendants ‘‘used the pretext of

operating a farm to abuse and kill animals which itself had no

purpose other than to intentionally annoy, upset and harass

plaintiffs and to cause them economic injury.”’

Public curiosity was stimulated by the piggery, and traffic

became congested in front of plaintiffs’ properties. Tourists

would often trespass upon plaintiffs’ land in order to view and

photograph the spectacle, and defendants issued an instruction

sheet to farmhands regarding the treatment of tourists.

In addition, Mrs. Nelson’s well and springs were polluted as a

result of the excessive manure. At one point, defendants ob-

tained a discovery order as part of their attempt to obtain ap-

proval for the motel. The order compelled Mrs. Nelson to allow

the drilling of six test wells on her property so that the state

could monitor any pollution. She refused and obtained a pro-

tective order. Plaintiffs testified that many pigs were

slaughtered on the morning after the protective order was

issued.

Defendants invested about $50,000 in the farm, excluding the

purchase price of the land. No pigs were ever sold or marketed

for their income.

Conditions greatly improved shortly before the case came to

trial. The animals began receiving regular veterinary care along

with adequate shelter and provisions. The number of pigs on the

property was greatly reduced and healthy pigs arrived to replace

~sickly ones. The storage tank was screened and the junk cars

removed. The trial court concluded that the farm could have

been operated with no deleterious effects on the plaintiffs. The

court found that defendants’ operations caused each of the

plaintiffs to lose the full use and enjoyment of their land, to suf-

fer emotional distress and, in the case of the Florys and Mrs.

Nelson, to lose business income.

On the basis of these and other facts, along with the in-

ferences drawn from them, the trial court concluded that the

operation of the farm constituted a nuisance which infringed

unreasonably upon plaintiffs’ full use and enjoyment of their

properties, and the court enjoined further operations not in ac-

cordance with proper husbandry practices. The court also con-

cluded that the Florys and Mrs. Nelson had suffered a trespass

as a result of the manure spilled on their properties and the

pollution of Mrs. Nelson’s well and springs. Defendants were

enjoined from further trespasses. On the basis of detailed find-

ings regarding each plaintiff’s situation and the defendants’

assets, the court awarded the following damages: $40,000 in

compensatory damages and $80,000 in punitive damages to the

Cotys; $70,500 in compensatory damages and $150,000 in

punitive damages to Mrs. Nelson; and $77,161 in compensatory

damages and $150,000 in punitive damages to the Florys.

Defendants’ initial claim on appeal is that the trial court erred,

as a matter of law, in determining that the farm operations con-

stituted a nuisance. They contend that the court based its conclu-

sion on conditions that were too brief and insubstantial to rise to

the level of legal nuisance.

In order to be considered a nuisance, an individual’s inter-

ference with the use and enjoyment of another’s property must

be both unreasonable and substantial. Dunlop v. Daigle, 122

N.H. 295, 298, 444 A.2d 519, 520 (1982); W. Prosser, Law of

Torts § 87, at 577-80 (4th ed. 1971). The standard for determin-

ing whether a particular type of interference is substantial is that

of ‘‘definite offensiveness, inconvenience or annoyance to the

normal person in the community. . . .’’ Prosser, supra § 87 at

578. ‘Substantial harm is that in excess of the customary in-

terferences a land user suffers in an organized society.’’ 6-A

American Law of Property § 28.25 at 73 (A.J. Casner ed. 1954).

The trial court’s findings regarding the degree of interference in

the instant case are extensive and will not be detailed here. We

hold, however, that they are adequately supported by credible

evidence; accordingly they must stand. Trustees of Net Realty

Holding Trust v. AVCO Financial Services of Barre, Inc., 144

Vt. 243, 246, 476 A.2d 530, 532 (1984). Under either of the

above standards, the operation of the pig farm constituted a

substantial interference with plaintiffs’ use and enjoyment of

their properties.

Nor was the interference too brief to be considered a

nuisance. The duration of a particular condition is an important

factor in determining whether the interference caused is suffi-

ciently substantial to be deemed a nuisance, but it is not a

dispositive one. Prosser, supra § 87, at 580. In any event, the

continuing nature of the offensive farm operations is clear from

the evidence and the findings. The unreasonable use of the

Ramsey property persisted for over two and one-half years,

abating only when trial was about to commence. Although cer-

tain aspects of the nuisance varied in their intensity with the

seasons, the overall condition of the piggery remained constant.

Defendants also contend that the trial court wrongly relied

upon the unsightliness of their farm in declaring it a nuisance.

As a general rule, the unsightliness of a thing, without more,

does not render it a nuisance under the law. See Woodstock

Burying Ground Association v. Hager, 68 Vt. 488, 489, 35 A.

431, 432 (1896). Some evidence of a trend away from this rule

can be found in other jurisdictions. See, e.g., Hay v. Stevens,

271 Or. 16, 530 P.2d 37 (1975); see also Note, Aesthetic

Nuisance: An Emerging Cause of Action, 45 N.Y.U.L. Rev.

1075 (1970). However, we need not deliberate about the rule’s

10a

continuing viability because this case involved more than mere

unsightliness.' The trial court’s nuisance determination was

based in large part upon the odors, the flies, and the offensive

animal husbandry practices.

The trial court’s opinion makes clear, moreover, that the

weightiest factor in its analysis was defendant’s malicious

motive. The court found that the conditions complained of were

created intentionally, under circumstances indicating ‘‘extreme

i!l will and insult.’’ In another finding, the court stated that

defendants ‘‘used the pretext of operating a farm to abuse and

kill animals which itself had no purpose other than to inten-

tionally annoy, upset and harass plaintiffs and to cause them

economic injury.’’ On appeal, defendants note that the farm

was an approved use of the land under Stowe’s zoning regula-

tions, and they maintain that an improper motive does not con-

vert an otherwise lawful act into an unlawful one.’ But the great

majority of jurisdictions have held that where a defendant has

acted solely out of malice or spite, such conduct is indefensible

on social utility grounds, and nuisance liability attaches. Pro-

sser, supra § 89, at 598-99. In sum, the lower court was correct

as a matter of law in concluding that the operation of the pig-

gery constituted an actionable nuisance.

II.

Many of defendants’ arguments center upon the evidence

presented at trial. They urge that this evidence supports neither

'We observe that the interferences complained of in the so-called ‘‘spite

fence’’ cases are often limited to aesthetics. See, e.g., Welsh v. Todd, 260

N.C. 527, 133 S.E.2d 171 (1963). The circumstances of this case demonstrate

that a ‘‘spite farm’’ can produce far greater interferences than can a spite

fence.

7In 1981, legislation was enacted for the express purpose of shielding reason-

able agricultural activities from nuisance lawsuits. See 12 V.S.A. §§ 5751-

5753. The activities at issue here are far removed from the sphere of the

statutory protection.

lla

the trial court’s findings of fact nor its ultimate conclusion that

a nuisance had been established.

This Court assumes a deferential role in reviewing a trial

court’s findings of fact: a finding will not be set aside unless,

when the supporting evidence is viewed in the light most favor-

able to the prevailing party and the effects of modifying

evidence are excluded, it is clearly erroneous. Bruntaeger v.

Zeller, 147 Vt. 247, 250, 515 A.2d 123, 125 (1986). Further-

more, unless the party objecting to a particular finding was

harmed by the alleged error, the objection will not be con-

sidered. Hogel v. Hogel, 136 Vt. 195, 198, 388 A.2d 369, 370

(1978).

We have scrutinized the voluminous trial transcript, and we

are satisfied that most of the challenged findings are grounded

upon credible evidence. Defendants direct our attention to con-

trary evidence in the record, but consideration of this evidence

is precluded by the applicable standard of review. With the ex-

ception of certain findings relating to Raymond Ramsey, which

will be discussed later in this opinion, any minor errors in the

court’s findings are harmless.

In several instances, defendants argue in the alternative that a

particular finding does not provide sufficient ground for a

holding of nuisance. But these contentions are simplistic, con-

centrating on the subject matter of a specific finding in isolation

and ignoring the significance of cumulative interferences. The

trial court did not base its conclusion of law on any one factor

or incident; instead its decision was grounded on the totality of

all the circumstances involved in the continuing pattern of

unreasonable farming and husbandry practices. We conclude

that the trial court’s ultimate nuisance determination is sup-

ported by the evidence and by the findings of fact.

l2a

The trial court’s award of compensatory and punitive

damages in this case was a major source of debate on appeal.

Distillation of the many claims of error reveals four primary

issues: (1) whether the trial court failed to include a clear state-

ment of the method employed in assessing damages, (2) whether

the court erred in computing compensatory damages, (3)

whether the court erred in awarding punitive damages in the

light of the evidence presented at trial, and (4) whether the

punitive damages award is excessive under case law or under the

terms of the Eighth Amendment.

Defendant Raymond Ramsey maintains that the trial court

failed to include a clear statement of the method used in assess-

ing damages and of the weight given to the various factors in its

analysis. ‘‘The purpose of findings is to provide a clear state-

ment as to what was decided and why; where no indication ap-

pears of the method employed and weight accorded various fac-

tors, remand is necessary.”’ Richard v. Richard, 146 Vt. 286,

287, 501 A.2d 1190, 1190-91 (1985). In Hilder v. St. Peter, 144

Vt. 150, 478 A.2d 202 (1984), a case involving a dispute between

landlord and tenant, this Court reversed a judgment awarding

$1500 in ‘‘additional compensatory damages’’ because the

lower court did not indicate how it had reached that figure. /d.

at 164-65, 478 A.2d at 211. Although the court’s findings clearly

demonstrated the appropriateness of awarding these additional

damages in some amount, the case was remanded for a hearing

and findings on what that amount should be. Here, in contrast, |

- the trial court made no less than twenty-six findings of fact as |

groundwork for the damages analysis. In a discussion of its con- |

clusions, moreover, the court included a painstaking explana-

tion of the applicable theories of liability and damages. The

court’s final order incorporates a complete itemization of the

damages awarded and the basis for each portion of the award.

l3a

The sole shortcoming of any significance relates to the theories

of liability: although the trial court concluded that two of the

plaintiffs had suffered a trespass, no damages were awarded on

this basis.’ Defendant claims reversible error, but this is not a

case where it is difficult to determine under what theory

damages were awarded. Cf. Page v. Smith-Gates Corp., 143 Vt.

280, 283, 465 A.2d 1102, 1104 (1983). Instead, the court’s order

makes clear that each element of damages was awarded under a

nuisance theory. While an express indication that no trespass

damages were being awarded might have been preferable,

defendant was not prejudiced by the court’s failure to do so.

The trial court awarded plaintiffs a total of $187,661 in com-

pensatory damages, and Raymond Ramsey argues that the court

made several errors in the course of its computations. He begins

with the contention that the court improperly considered un-

sightliness as a factor, but this argument fails in light of our

earlier holding on this issue. Defendant then attacks the trial

court’s award of lost-use damages, which were determined by

assessing lost rental values, to plaintiffs Nelson and the Florys.

He maintains that the court erred by taking the amount of lost

rental value occurring in those months when the nuisance

elements of flies and odors were at their worst and multiplying

that amount by thirty-one, the total number of months that the

nuisance continued. The flies and odors were not the only

aspects of the continuing nuisance, however, and the court’s

findings that the decreases in rental values persisted over the en-

tire period of the nuisance are not clearly erroneous. Further-

more, where the nature of a particular cause of action is not

*We need not decide whether the court erred in making no finding of agency

with regard to the truck drivers who spilled the manure upon the Florys’ prop-

erty. Any such error would be harmless in light of the fact that no damages

were assessed for trespass.

l4a

conducive to exact computation of damages, an award will

withstand review unless it is grossly excessive. Birkenhead v.

Coombs, 143 Vt. 167, 173, 465 A.2d 244, 247 (1983). Here, the

trial court’s award of $15,500 to Mrs. Nelson and $9,300 to the

Florys in compensation for the lost rental values of their respec-

tive properties was not excessive and must be upheld.

Defendant also urges that the lower court’s computation of

the compensatory damages due to plaintiff Nelson was flawed

by an award of $5,000 for the installation of a water purifier.

He argues that the testimony relied upon by the court as to costs

was beyond the scope of cross-examination and constituted a

**guess’’ by the witness. As the transcript indicates, the trial

court acknowledged that the testimony in question, offered by

plaintiffs’ expert on real estate values, was beyond the scope of

cross-examination. The testimony was admitted, nevertheless,

because the court had assumed an active role in questioning the

witness On cross-examination and because considerations of

fairness required that plaintiffs’ counsel be allowed to elicit

testimony on the points covered. The trial court enjoys a great

deal of discretion in controlling the interrogation of witnesses

and the presentation of evidence, and we find no error here. See

V.R.E. 611(a); Bevins v. King, 147 Vt. 203, 207, 514 A.2d 1044,

1047 (1986). Also, while plaintiffs’ expert admitted that his

$5,000 estimate was a guess, he stated that the figure was ‘‘bas-

ed on my experience with water systems’’ and ‘‘[m]y own ex-

posure to water conditioning in the area.’’ The transcript makes

clear that the entire discussion of water purification centered

around the expert’s appraisal of plaintiff Nelson’s real property

and the effect that water pollution would have on that ap-

praisal. Evidence that provides reasonable certainty in the

estimation of damages is ‘‘sufficient to call for the exercise of

sound judgment and to require a decision.’’ Hinesburg Sand &

Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 487, 380 A.2d

64, 67 (1977).

Defendant’s fourth point regarding the compensatory

EE —_—e

lSa

damages award concerns the mitigation of damages. He argues

that the lower court failed to consider two mitigating factors: (1)

on their federal income tax returns, the Florys depreciated the

cost of air conditioners purchased to control odor in their

motel, yet they were awarded their full cost in the form of com-

pensatory damages, and (2) the use of these air conditioners

reduced the harm that the Florys would have otherwise incur-

red. As to the first of these contentions, any tax benefit received

by the Florys as a result of their purchase of the air conditioners

was derived from a collateral source, i.e., the United States

government. The ‘‘collateral source rule’’ allows a plaintiff full

recovery against a tort-feasor even where he is otherwise com-

pensated by a source independent of the tort-feasor. My Sister’s

Place v. City of Burlington, 139 Vt. 602, 612, 433 A.2d 275, 281

(1981); see also Felder v. United States, 543 F.2d 657, 670 n.17

(9th Cir. 1976) (distinguishing between government as indepen-

dent source and government as tort-feasor). Any tax benefit

received by plaintiffs is a matter solely between them and the

taxing authority. Cereal Byproducts Co. v. Hall, 16 Ill. App. 2d

29, 81, 147 N.E.2d 383, 384 (1958), aff’d 15 Ill. 2d 313, 155

N.E.2d 14 (1958); Weisenberger v. W. E. Hutton Co., 35

F.R.D. 556, 558 (S.D.N.Y. 1964). If we considered the

significance of such tax benefits, then we would also have to

consider the dimunition of damages awards by taxation. There

was no error in disregarding this extraneous issue.

Furthermore, although the air conditioners may have had

some ameliorating effect upon the odor problem, it does not

follow that damages were mitigated. All but one of the units

were purchased for the Florys’ motel. The trial court’s calcula-

tion of lost use value for the motel was based on an actual

decrease in room rentals, and this decrease occurred despite the

existence of the air conditioners. The Florys did install one of

the window units in their four-bedroom home, but we cannot

say that any minimal mitigation represented by this unit was

overlooked in the computation of damages. Mrs. Flory testified

that in her opinion the rental value of her home had decreased

l6a

by $300 per month, and the trail court accepted this evidence.

Mrs. Flory was competent to testify regarding the value of her

property, and the weight afforded to her opinion was a matter

for the trier of fact. See Shortle v. Central Vermont Public Ser-

vice Corp., 134 Vt. 486, 489, 365 A.2d 256, 258 (1976). Thus,

we find no error relating to mitigation of plaintiff's damages.

Defendant’s challenge proceeds with an attack upon the com-

pensatory award to plaintiff Nelson. He argues that the trial

court erred by awarding full damages for loss of business at

Nelson’s gourmet shop despite the evidence that other causal

factors may have been involved and despite the sensitive nature

of the enterprise. These arguments lack relevance, however,

because the lower court did not award damages to plaintiff

Nelson based on loss of business; instead, the court recognized

the difficulties inherent in such an assessment and awarded

damages based on lost rental value. This approach minimized

the influence of factors other than the existence of the pig farm,

and no error appears.

The final question presented regarding the trial court’s com-

putation of compensatory damages is whether the trial court

‘*double-counted’’ in assessing damages to plaintiffs Nelson

and Flory. Defendant contends that plaintiffs’ awards of

$15,500 and $15,300, respectively, for ‘‘lost use or rental in-

come’’ and the awards of $50,000 and $60,000, respectively, for

‘*deprivation of the full use and enjoyment of the property and

emotional upset, annoyance and discomfort’’ are duplicative

and, therefore, erroneous. In making this argument, defendant

ignores the trial court’s conscientious explanation of each ele-

ment of the ward, and he confuses compensation for pro-

prietary losses with compensation for personal losses. Where an

abatable nuisance is found to exist, the award of damages can

properly include both compensation for the lost use of property

(calculated on the basis of diminished rental or use value) and

compensation for personal injuries such as annoyance, discom-

fort, and inconvenience. Wilson v. Key Tronic Corp., 40 Wash.

iene

17a

App. 802, 811, 701 P.2d 518, 525 (1985); see also Rust v. Guinn,

429 N.E.2d 299, 302-04 (Ind. App. 1981); and Prosser, supra, §

90, at 602-03. The situation here was complicated because plain-

tiffs Nelson and Flory used their properties both as residences

and as business locations. The court’s findings distinguished

| carefully between their proprietary damages and personal

damages. In essence, the trial court ordered full compensatory

damages for all plaintiffs as residents and then awarded

specific, additional amounts to plaintiffs Nelson and Flory as

compensation for their business losses. Thus, the compensatory

damage awards here do not include duplicative elements, and

they are proper in all other respects as well.*

Cc.

In addition to assessing compensatory damages, the trial

court awarded plaintiffs a total of $380,000 in punitive

damages. Defendants assert that punitive damages are un-

warranted here, arguing that the evidence does not support a

finding of actual malice.

In order to recover punitive damages, a plaintiff must demon-

strate actual malice on the part of the defendant. Shortie v.

Central Vermont Public Service Corp., 137 Vt. 32, 33, 399 A.2d

517, 518 (1979). But no direct evidence of the defendant’s men-

tal state is required; instead, the nature of his conduct and the

surrounding circumstances can establish his motive and his state

of mind. Dahlen v. Landis, 314 N.W.2d 63, 69 (N.D. 1981).

Thus, a showing of ‘‘conduct manifesting personal ill will or

carried out under circumstances evidencing insult or oppression,

or... areckless or wanton disregard of one’s rights’’ will suf-

fice. Shortle, 137 Vt. at 33, 399 A.2d at 518 (citation omitted).

‘Raymond Ramsey also suggests that the magnitude of the compensatory

awards indicates that the trial court enhanced them on grounds of malice, but

he provides no support for his claim.

18a

The trial court here found that ‘‘[djefendants allowed the

farm to operate as it did for the express purpose of upsetting,

harassing and disturbing plaintiffs. The defendants intentional-

ly disregarded the rights of plaintiffs under circumstances mani-

festing extreme ill will and insult.’’ Defendants impugn this and

other findings of malice, but the record is replete with evidence

supporting the trial court’s determination with respect to Nor-

mand Ramsey. A complete reiteration of the evidence is not re-

quired, but we note the following circumstances: the timing of

the establishment of the piggery, the importation of many junked

automobiles, the positioning of these vehicles and all other

aspects of the operation near plaintiffs’ properties, the dumping

of two hundred cubic yards of wet chicken manure directly across

from plaintiffs’ properties, the threatening telephone calls, and

the gross mistreatment and neglect of the farm animals. We also

observe the absence of any other motive, commercial or other-

wise, for maintaining the operation at issue.

On the other hand, the evidence elicited at trial does not sup-

port the court’s finding of actual malice with respect to Ray-

mond Ramsey. In sum, the record reveals that Raymond sought

permits for the proposed motel, obtained permits for the farm,

helped erect the fence around the farm, and directed the dump-

ing of the first load of manure. Although this degree of par-

ticipation in the nuisance was sufficient to create tort liability in

Raymond, it did not rise to such a level that actual malice on his

part could be inferred. The court’s findings on the malice issue,

often referring to defendants in the plural, are therefore clearly

erroneous to the extent that they implicate Raymond Ramsey. It

follows that Raymond cannot be held liable for punitive damages

and the trial court’s judgment on this matter is reversed.

Because of Vermont’s adherence to the doctrine of joint and

several liability, our disposition of the punitive damages issue

raises other questions. Where joint tortfeasors are involved, the

traditional rule is that punitive damages are to be assessed ‘‘ac-

cording to the guilt of the most innocent of the defendants; and,

19a

if any of them was acting in good faith and so not liable for such

damages, none can be awarded in the suit.’’ Parker v. Roberts,

99 Vt. 219, 225, 131 A. 21, 24 (1925). In theory, this rule would

protect a relatively innocent defendant, otherwise liable only for

compensatory damages, from enhanced liability on the ground

of another defendant’s malice.