Updated: Jul 9, 2020
This post should not be considered legal advice.
Recently I was asked to present at the University of Maryland Extension’s commercial pesticide training in Frederick and Denton. My topic was pesticide drift liability. I decided to bypass looking at the administrative process through the Maryland Department of Agriculture and focused on previous court decisions involving drift liability related to negligence, trespass, and using the pesticide outside the label.
Negligence is simply failure to exercise a duty of care under the circumstances. This means that you failed to act as a reasonable and prudent person would have in the same situation. In Mangrum v. Pigue, a neighboring farmer claimed that negligent application of Roundup Ultra had killed his corn. The Arkansas Supreme Court found no evidence to show that the commercial applicator had been negligent in the application of Roundup Ultra. The applicator (who was the only witness) stated the application was done according to the rules, no witnesses saw a plume of chemical drift hit the neighbor’s corn, the chemical used was commonly used, and a check of weather conditions showed the application took place with minimal winds.
What could have changed the outcome in Mangrum? Additional witnesses could potentially change the outcome, especially if the witnesses saw the applicator applying the chemical improperly or saw chemicals hitting the neighboring landowner’s property, bad weather conditions, or if the court found that the chemical was less commonly used. These are all potential ways to demonstrate negligence on the part of the applicator.
Another state looking at pesticide drift as negligence applied the doctrine of res ipsa loquitor (Latin for “the thing speaks for itself”) meaning accident does not typically arise without negligence. In Farm Services, Inc. v. Gonzales, the Texas Court of Appeals found that the sudden and unexpected discharge of a chemical by a crop duster did not normally occur in the absence of negligence. The court applied the res ipsa loquitor doctrine in that case. But a few years later, the Texas Court of Appeals in another opinion involving drift refused to apply the doctrine because there was no sudden and unexpected discharge of a pesticide and there was no showing the drift had been caused by negligence (Parker v. Three Rivers Flying Service, Inc.).
One final theory of negligence utilized by a court in these drift cases is strict liability. Strict liability does not require a person to show negligence but involves the breach of a duty to make something safe. This is typically a theory used in product liability cases and in cases involving dangerous animals. For example, Mike Tyson owns a tiger. No matter how strong Mike’s tiger cage is, if that tiger gets out and causes damage, then Mike will be strictly liable regardless of proving negligence because a tiger is a dangerous animal. In Young v. Darter, the Oklahoma Supreme Court held that a landowner using a weed killer (in this case 2-4D) did so at his/her own peril and would be liable for the damage, regardless of negligence being shown.
Many of you probably are aware that a person can commit trespass, but what about particulate matter like pesticides? Let us quickly review what a trespass is. Trespass is when a person enters your land without your consent and remains without your consent. In Johnson v. Paynesville Farmers Union Co-op Oil Co., the Minnesota Supreme Court found that the invasion by particulate matter, like a pesticide, did not amount to a trespass. The Minnesota court pointed out that some states do have histories of finding invasion by particulate matter to be a trespass. A quick review of previous Maryland court decisions shows no previous decisions discussing the invasion of particulate matter to be a trespass (this is Paulspeak for “I have no idea what the rule is in Maryland is at this point”).
Use Inconsistent with the Label
Many of you already know that your pesticides must be used for purposes consistent with the label. Another potential avenue for pesticide drift liability is using the pesticide for a use inconsistent with the label. This is highlighted really well in Johnson v. Odom out of Louisiana. The facts are simple. Johnson was a commercial applicator who had run-ins with the Louisiana Ag Department in the past which lead to him losing his license. Johnson continued to operate as a commercial operator after his license was revoked. One day while applying chemicals, a state ag official took photos of Johnson applying the chemicals from a public road and Johnson sprayed the state ag official during the application. The state ag department found applying the chemicals to the state ag official was a use inconsistent with the approved label and imposed the maximum fine against Johnson. The Louisiana Court of Appeals agreed with this determination and affirmed the ag department’s decision.
I realize no one reading this would spray a Maryland Department of Agriculture official with a pesticide, but I use it to highlight something important. Pay attention to the labels and make sure the applications are consistent with the label. Otherwise, this is going to be the easiest way for a court to potentially impose liability on you for drift.
When reviewing pesticide drift liability, courts have been anything but consistent. Many have utilized a negligence theory which will potentially turn on the factors highlighted by the Mangrum case. The other theories mentioned are less consistently applied but I highlighted them just to make you aware they are out there.
Finally, as I pointed out in my presentation: Don’t spray an MDA official. It is probably the quickest way for a court to hold you liable for drift. Now you can do this when the pesticides label specifically includes spraying a state official as an approved use, but has that ever showed up on a label?
Farm Services, Inc. v. Gonzales, 756 S.W.2d 747 (Tex. App. 1988).
Johnson v. Odom, 536 So.2d 541 (La. Ct. App. 1988).
Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693 (Minn. 2012).
Mangrum v. Pigue, 198 S.W.3d 496 (Ark. 2004).
Parker v. Three Rivers Flying Serv., Inc., 220 S.W.3d 160 (Tex. App. 2007).
Young v. Darter, 363 P.2d 829 (Okla. 1961).