February 25, 2011
Flying barn roof is followed by a lawsuit
By ANDREW BERGH
Special to the Journal
Montana will never qualify as the litigation capitol
of the world.
Maybe it's got something to do with the fact that the Treasure State is
the fourth largest but has less than one million residents. With
population density that low, there just aren't as many occasions to sue.
Whatever the reason, business sure seems slow for Montana courts.
An apt example? The Case of the Flying Barn Roof.
In the summer of 2002 or 2003, John Neumann bought a home near
Pipestone, Mont., that included a barn. In 2005, using the same design
as the existing barn, he built an addition complete with a new roof.
One nasty day in late June 2007, the winds were really howling — so much
so that the roof on Neumann's barn addition blew off in one piece.
Although there were no eyewitnesses, the airborne roof apparently struck
and severed a power line on land belonging to two of Neumann's
neighbors. The severed line, in turn, sparked a fire that engulfed and
totally destroyed much of the neighbors' property, including seven
outbuildings, corrals, fences, trees, a field and “substantial personal
In May 2008, the neighbors, Dan and Barbara Goles, sued Neumann for
damages in Jefferson County District Court. They claimed that so-called
“storm collars” are required to secure a roof during periods of high
winds, that Neumann had negligently failed to use storm collars (or
appropriate metal strapping) for his barn roof addition, and that an
improperly built roof could foreseeably cause damage to another's
When the case went to trial in mid-April 2010, the Goles pointed out
that when Neumann replaced the missing roof, he had used storm collars
to avoid losing it again.
The plaintiffs also presented testimony from a construction expert, who
said that in windy areas, he uses storm collars on every single job. The
witness also said storm collars are safety devices that are “readily
available anywhere.” More importantly, the expert expressed the opinion
that given the way the roof was constructed, the lack of storm collars
was unreasonable and rendered the roof “insufficient.”
Whatta bunch of baloney, the defendant countered.
According to Neumann, he had properly designed and built his addition
based on the design of the existing barn, which had been “structurally
viable” through snow and wind for all the years he had owned the
property. He also argued that it was unforeseeable that his roof would
Neumann also presented testimony from a “wood science” expert.
While acknowledging that storm collars are commonly used in windy areas
to secure roofs, the expert said it was “significant” that Neumann had
secured his new roof with at least 550 nails and built it in such a way
that it would withstand 100 to 105 mile-per-hour winds (as opposed to
the 90-mile-per-hour design standard used by builders). On
cross-examination, however, the defense expert conceded that “you can
make it better” by also using metal strapping (or storm collars) to
After both sides rested, a Jefferson County jury returned a defense
verdict. The Goles appealed. Since Montana has no lower appellate
courts, the appeal went straight to the Montana Supreme Court.
According to the Goles, the trial court had improperly instructed the
Their main gripe? An instruction telling the jury that negligence isn't
proven “merely because someone later demonstrates that there would have
been a better way.” This wording, said the plaintiffs, invited the jury
to disregard the experts' testimony that storm collars (or metal
strapping) make better roofs — and thus amounted to an “improper comment
on the evidence” by the trial court.
By a 5-2 tally, the Montana high court agreed. And since they also
agreed the instructional error prejudiced the Goles, the justices
reversed the judgment and awarded them a new trial.
But let's return to my earlier statement that Montana won't ever qualify
as the litigation capitol of the world.
Remarkably, only nine months elapsed between the jury trial and the high
court's decision earlier this month. Things like this can happen with a
low volume of lawsuits.
But compared to most places, that's almost warp speed. In our fine
state, for example, the average appeal time is approximately 18 months —
and if your case goes all the way to our state Supreme Court, you can
often tack on another 18 months or so.
In short, if justice delayed is truly justice denied, there's at least
one good reason for moving to Big Sky Country.
But should you do exactly that and buy property with a barn, just make
sure its roof is properly attached.
© 2005 - 2010 Law Office of Andrew Bergh. All rights reserved.