This time of year, questions pop up regarding the potential liability when pesticides drift onto another’s property.  For the next couple of weeks, we will look at various issues regarding spray drift liability.  This series will focus only on civil claims brought between landowners, but it is important to note  the Texas Department of Agriculture enforces rules regarding spraying and can bring administrative action against persons who fail to comply with these regulations.  Producers should always ensure they follow the label instructions and TDA regulations when spraying any pesticide.

There are multiple legal claims available to a landowner if pesticide drift occurs, including negligence, strict liability, trespass, and nuisance.  Let’s consider each potential claim under Texas law.

Negligence

Negligence is the most common legal claim made when spray drift occurs.  Essentially, a person is liable for negligence when he or she fails to act as a reasonable person would and that causes damage to another.  In order to succeed on a negligence claim, a plaintiff must prove four elements:  duty, breach, causation, and damages.  Generally the two elements most at issue in a spray drift case are breach and causation.  To analyze whether a breach occurred, a jury will look at the facts surrounding the situation and determine if the defendant acted as a reasonable person would have.  If so, the duty was not breached and no negligence existed.  Commonly considered factors to make this determination include whether label requirements were followed, what the wind speed was at the time, whether precautions were taken to avoid drift, and the like.   With regard to causation, this can be a difficult element to prove if there are a number of farmers in the area who have sprayed crops with the same pesticides during the same time period.  A plaintiff will need to show it was the defendant’s actions that caused his or her damage.

Numerous Texas courts have considered the issue of negligence when drift occurs.  For example, in Parker v. 3 Rivers Flying Service, 220 S.W.3d 160 (Tex. Ct. App. – Eastland 2007), the court considered a negligence claim against an aerial applicator who sprayed malathion on cotton. The evidence showed that the applicator stationed a ground observer near the field, the wind speed was under 10 miles per hour, the pilot inspected the plane before flight to ensure safety and functionality of spraying equipment, and before spraying, the pilot examined the field to ensure it was clear of people.  Because the plaintiff offered no evidence to show that the applicator acted unreasonably so as to breach his duty of care, the court granted summary judgment in favor of the applicator.  See also Ford v. Shallowater Airport, 492 S.W.2d 655 (Tex. Ct. App. – Amarillo 1973); Kesler v. Merritt, 368 S.W.2d 17 (Tex. Ct. App. – Amarillo 1963).

Conversely, negligence was found based on the facts present in Boyd v. Thompson-Hawyard, 450 S.W.2d 937 (Tex. Ct. App. – Tyler 1970).  In that case, one farmer sued his neighbor claiming spray drift damaged his cotton crop.  The plaintiff introduced evidence that it was windy the day of application, the pilot knew there was a danger of drift, the product label warned against use near cotton fields, and witnesses reported smelling chemical on the plaintiffs’ field after the application occurred.  Based on these facts, the court concluded that the applicator acted unreasonably and was guilty of negligence.  See also Aerial Sprayers, Inc. v. King, 317 S.W.2d 602 (Tex. Ct. App. – Amarillo 1958).

Strict Liability

Strict liability applies in situations where an activity is so dangerous that even with extreme care, injury is likely to occur.  In these situations, the law reasons that liability is warranted regardless of how careful or reasonable the defendant acted.  The classic law school example involves ownership of a tiger in one’s back yard.  Owning a tiger is so dangerous that courts do not care how careful or reasonable the person acted, if a plaintiff is injured by the tiger, liability will result.   Many jurisdictions have found that strict liability should not apply to application of pesticides.  See, e.g., Mangrum v. Pigue, 198 S.W.3d 496 (Ark. 2004) (aerial spraying is not inherently dangerous, no strict liability cause of action available); Dow Chemical v. Ebling, 723 N.E.2d 881 (Ind. Ct. App. 2000) (strict liability not applicable to pesticide case); see also Terence J. Centner, Damages from Pesticide Spray Drift under Trespass Law, 41:1 Ecology Law Currents 1, 4 n.25 (2014).  On the other hand, Oklahoma has imposed a strict liability standard on aerial pesticide spraying.  In 1961, in Young v. Darter, the Oklahoma Supreme Court applied strict liability when a an herbicide sprayed on pastureland damaged a neighboring cotton field.

The Texas Supreme Court has not addressed whether strict liability is a viable claim under Texas law.  Texas appellate courts seem to indicate strict liability may not be available.  See Stull’s Chemicals v. Davis, 263 S.W.2d 806 (Tex. Ct. App. – Dallas 1953) (“weed killer is not shown to be an inherently dangerous compound…in which event the manufacturer cannot be held to strict liability damages resulting from its negligent use”); Sun Pipe Line Co. v. Kirkpatrick, 514 S.W.2d 789 (Tex. Ct. App. – Beaumont 1974) (“In each of the Texas crop dusting cases, where there has been no physical invasion of the plaintiff’s premises by the crop duster, the courts have uniformly required a finding of negligence as a condition precedent to imposition of liability.”).

Trespass

Trespass is the unauthorized entry of a person or substance onto another person’a land.  Thus, a plaintiff must prove that something or someone entered their property without the owner’s consent. Texas law appears to recognize trespass claims when spray drift is involved.  In Dallas Flood Control District v. Fowler, 280 S.W.2d 336 (Tex. Ct. App. – Waco 1955), the court held that trespass occurred when 2-4D was sprayed on the defendant’s land and drifted causing damage to the plaintiff’s property.  See also Schronk v. Gilliam, 380 S.W.2d 743 (Tex. Ct. App. – Waco 1964).

One important note, however, is that the Texas Right to Farm Act could apply to this type of claim.  The Right to Farm Act offers an affirmative defense to agricultural operations against whom nuisance suits have been filed.  [Read more here.]  In order for the defense to be successful, the defendant must show that the operation has existed substantially unchanged for at least one year and that it is not violating state or federal laws.  Thus far, no Texas cases have addressed the application of Right to Farm in the spray drift context.

Nuisance

Finally, nuisance could be a potential claim for a plaintiff if spray drift occurs.  Nuisance exists if the defendant’s actions substantially interfere with the plaintiff’s use and enjoyment of his or her own property.  Courts in California and Minnesota have indicated that nuisance claims may be available to plaintiffs in spray drift cases.  See Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693 (Minn. 2012) (plaintiff’s nuisance claim was viable); Jacobs Farm/Del Cabo, Inc. v. W. Farm Serv. Inc., 119 Ca.. Rptr. 3d 529 (Cal. Ct. App. 2010 (nuisance claim was viable).  To date, no Texas spray drift cases have involved a nuisance claim.  Like, trespass, the Right to Farm statute could provide an affirmative defense against nuisance claims.