In Part 1 of this series, we focused on potential legal claims that could be brought against a landowner if spray drift occurred.  An important related question exists for any farmer or rancher who uses independent contractors, like an aerial applicator for example, to apply the pesticides.  Can the landowner be liable for the acts of his independent contractor?  This is a critical question that has not yet been answered by the Texas Supreme Court.

What is an independent contractor?

The starting place for any discussion of liability for an independent contractor’s actions must always be to determine if the person is, in fact, an independent contractor as opposed to an employee.  The Texas Supreme Court defines an independent contractor as “any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details.”  Pitchfork Land & Cattle Co. v. King, 346 S.W.2d 598 (Tex. 1961).  Courts look at a number of factors to determine whether a person is an independent contractor, including the independent nature of the business, obligation to furnish tools and equipment, right to control the work, length of work, and method of payment.  See id.

Numerous Texas cases have found that where a landowner hires an aerial spray company to apply pesticide, the applicator as an independent contractor.  In Pitchfork Land & Cattle Co., the Court found the applicator an independent contractor because its  business was incorporated under Texas law, they had sprayed over a million acres for various people, the company owned its own planes, and employed the pilot.  The fact that the landowner testified he could have told the pilot to stop spraying did not change the Court’s decision.  See also Foust v. Estate of Walters, 21 S.W.3d 495 (Tex. Ct. App. – San Antonio 2000) (sufficient evidence to uphold jury finding that aerial applicator was independent contractor); Boyd v. Thompson-Hayward Chemical Co., 450 S.W.2d 937 (Tex. Ct. App. – Tyler 1970) (aerial pilot was independent contractor).

It is not difficult, however, to imagine a situation where a landowner could use an employee–rather than an independent contractor–to spray pesticide or herbicide.  For example, if a full time farm worker sprays pesticide while using the landowner’s tractor, these facts would likely result in the conclusion that the worker was an employee, rather than an independent contractor.

The analysis of whether one is classified as an independent contractor is always very factually specific and considered on a case-by-case basis.

Law regarding liability for independent contractors.

Under Texas law, an employer is generally liable for the negligent acts of an employee who is acting in the course of his employment.  The same is not true, however, for an independent contractor.  Texas law makes clear that one who contracts for work to be done by an independent contractor is not liable for the contractor’s negligence.  See Foust, 21 S.W.3d at 507.

There is, however, a very important exception.  Persons who hire an independent contractor can be liable if the work the contractor was hired to do is considered to be “inherently dangerous.”  Inherently dangerous work is that which is dangerous even in its normal, non-defective state and must result in probable injury.  See Goolsby v. Kenney, 545 S.W.2d 591 (Tex. Ct. App. – Tyler 1976).  Working with explosives, for example, would likely be considered inherently dangerous.

Is the application of pesticides inherently dangerous?

Does pesticide application fall under this “inherently dangerous” exception?  The Texas Supreme Court has not answered that question.  In Leonard v. Abbott, 366 S.W.2d 925 (Tex. 1963), the Court expressly stated as much, reserving the question of whether application of pesticides is considered inherently dangerous for another day.

Lower level appellate courts in the state, however, have frequently found at least aerial application does qualify as inherently dangerous.  See Frazier v. Moeller, 665 S.W.2d 155 (Tex. Ct. App. – Eastland 1984) (“The aerial spraying of chemical defoliants and herbicides are activities having such potential for injury as to be classified as inherently dangerous.”); Gragg v. Allen, 481 S.W.2d 452 (Tex. Ct. App. – Waco 1972) (“The evidence establishes, as noted, that the aerial spray of herbicides is extremely dangerous, especially when used near cotton.”); Leonard v. Abbott, 357 S.W.2d 778 (Tex. Ct. App. – Texarkana 1962) overruled on other grounds by 366 S.W.2d 925 (“The aerial application of herbicide, if unskillfully and carelessly done, involves such grave risk of injury to the growing crops in the vicinity of the spraying that the employer should not escape liability when the work is negligently done by an independent contractor.”).

The most recent example is Foust  v. Walters, 21 S.W.3d 495 (Tex. Ct. App. – San Antonio 2000).  There, farmers filed suit against a neighboring farmer and the aerial application company that he hired to apply 2, 4D on his milo field.  The plaintiffs alleged that the pesticide drifted and harmed their cotton crop.  The farmer selected to purchase the product and give it to the applicator to spray.  The farmer admitted that there were other products available that were less prone to drift, but they were more expensive and he chose the cheapest option.  Additionally, his farm manager admitted that the farmer had purchased the safer chemicals to spray another location, which was closer to his own alfalfa field so that he would protect his field from drift.  The manager also testified that he told the pilot to make one more pass near the fence line to try and kill some weeds and sunflowers growing next to the fence, despite the manager being concerned about the wind.  The jury found that the farmer was liable (30%) for the acts of the independent contractor (who was found 70% liable).  The court expressly stated, “The supreme court has yet to determine whether crop dusting is inherently dangerous.  At the intermediate appellate level, however, an aerial application of herbicide has been found to be an inherently dangerous activity when the spraying under conditions which favor drift is done near susceptible crops.”

In light of these lower court decisions, there is at least the potential under Texas law that a person who hires an independent contractor to apply pesticide could be held liable for his or her negligence.