A case out of Missouri, Keller Farms, Inc. v. Stewart,  recently caught my attention as it addressed an interesting question, is crop dusting an “inherently dangerous activity?”  This is an important question as the answer can greatly impact the potential liability of a landowner or producer hiring someone to apply pesticides.

TAMU AgriLife photo by Kay Ledbetter

Why do we care?

Why do we care if a court considers aerial application of pesticide to be “inherently dangerous?”  The reason is that a person is generally not liable for the acts of his or her independent contractor.  An exception to that, however, is that a person may be liable for the acts of his or her independent contractor if the activity involved is deemed “inherently dangerous.”  So, assume a  sorghum farmer hired an aerial spray company, as an independent contractor, to spray for sugarcane aphids and drift occurred.  If the activity is not inherently dangerous, the farmer is not liable.  If the activity is inherently dangerous, the farmer can be liable for the pilot’s actions.

Case Background

The Stewarts hired Mr. McGarity to aerially apply pesticide on their property.

Keller Farms filed suit claiming negligence, negligence per se, and trespass against the Stewarts alleging that the pesticide applied by Mr. McGarity caused extensive damage to crops and trees on the Keller Farms property.  Keller Farms seeks to hold the Stewarts liable for the actions of Mr. McGarity because they claim aerial application of pesticides is “inherently dangerous.”

The court dismissed the plaintiff’s trespass claim based on Missouri statute.

The court also ruled that testimony and a warning letter from a Missouri Department of Ag employee related to this incident were inadmissible as their probative value was outweighed by the danger of unfair prejudice.  Similarly, the court also ruled to exclude evidence of two other warning letters issued by MDA to Mr. McGarity on prior occasions.

The negligence and negligence per se claims went to a jury trial, and the jury found in favor of the Stewarts.  Keller Farms filed a motion for new trial, arguing that the jury verdict was against the weight of the evidence.

Court Opinion

The court declined Keller Farms’ motion for a new trial.  [Read full opinion here.]

First, the court found that the Stewarts presented sufficient evidence to contest the elements that Keller Farms was required to prove.  This included testimony that aerial application is common place and not inherently dangerous, the pilot complied with the labeling requirements, spraying occurred during optimal conditions, and that the plaintiffs damages were not caused by the defendants.  This evidence, the court reasoned, was sufficient to support the jury’s finding.

An appeal has been filed with the US Court of Appeals for the Eighth Circuit.  We will keep you posted on that.

What about other states?

Courts in several US states have held aerial application of pesticides to be inherently dangerous such that a landowner is liable for the actions of an independent contractor.  These states are: AL, AZ, CA, GA, MA, MO, MS, NM, OK, SC, and WI.

In 2014, an Arkansas court expressly found that aerial application was not inherently dangerous and a landowner was not liable for the negligence of an independent contractor.

What about Texas?

 The Texas Supreme Court has not answered this 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.

Several lower level appellate courts in the state, however, have held 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 the contractor’s negligence.

Takeaways

Landowners and agricultural producers in Texas should be aware that there is the potential for liability if an independent contractor negligently aerially applies pesticides.  The best way to avoid such liability is to carefully select your independent contractor and take any steps necessary to ensure they are not negligent.  This may include, for example, looking at any prior violation history with TDA, meeting with them to discuss their spray plan, and pointing out any susceptible crops in the area.