STRICT LIABILITY IN A SPRAY CASE

     Pesticide Over-spray and the law of Strict Liability – When You Spray Do You Automatically Have to Pay?

     In our last article, we briefly outlined what you need to consider initially when handling a pesticide over-spray case.  In this article, we discuss whether the sprayer can be held strictly liable for applying a pesticide on his property or the property of another.  Of course, if the application is made in a negligent manner (e.g. in too high of winds), then it will not really matter if strict liability is available.  However, in cases where the sprayer has done everything properly and in a safe manner, the availability of strict liability to the claimant becomes crucial.  In order to analyze this issue, we need to first break down the spraying into two types – aerial spraying (i.e. crop dusting) and ground based spraying.

Aerial Spraying

The first case in Oregon to address whether the aerial spraying of a pesticide is an abnormally dangerous activity^[1] was Loe v. Lenhardt, 227 Or 242 (1961).  In that case, defendant had aerially applied a defoliant to his property which drifted onto plaintiffs’ property, damaging their seed crops.  The court began its analysis by holding that whether an activity is ultra-hazardous is a question for the court and is not for the fact-finder to decide.  The court noted that “crop dusting is an activity sufficiently freighted with danger.”  It held that, although crop dusting is an accepted practice at the appropriate time and place, “spraying chemicals from a plane is capable of inflicting damage on neighboring crops notwithstanding the exercise of the utmost care by the applicator.”  Accordingly, defendant could be held strictly liable for aerially spraying his crops.

     The next case to examine strict liability in the context of an aerial spraying of a pesticide was Bella v. Aurora Air Inc., 279 Or 12 (1977)^[2].  In Bella, the landowner had hired his co-defendant to aerially spray the herbicide 2,4-D on his wheat crop.  The 2,4-D drifted and damaged plaintiff’s mint crop.  One of the issues was whether the aerial spraying of 2,4-D is a ultra-hazardous activity.  The court held that when determining whether an activity is ultra-hazardous, you need to look at the locality and the circumstances where the activity was done.  If the threatened harm is “very serious,” even a low probability of harm can give rise to strict liability.  The court noted that the legislature had regulated the use of the ester formulation of 2,4-D (the type that was used in this case).  It therefore concluded, without any real analysis of the factors it enumerated, that the aerial spraying of a 2,4-D ester is ultra-hazardous.

     Accordingly, it is very clear that in Oregon, if a person aerially applies a pesticide, he can be held strictly liable for doing so if any damage ensues.  Whether that is true for ground spraying is still an open question.

Ground Spraying

     Although Koos v. Roth, 293 Or 670 (1982) does not deal with aerial spraying, it does involve another common farming practice – field burning – and is also the leading strict liability case in Oregon.  The court in Koos discussed the rationale behind allowing strict liability and provided some guidance on what may or may not be an abnormally dangerous activity.

     The court stated that “when a person engages in . . . a dangerous activity, useful though it may be, he becomes an insurer.”  The court reasoned that the person who is engaged in the dangerous activity is the person who should bear the risk of loss and not the innocent third-party who has been damaged.  The issue is “who shall pay for harm that has been done.”  The court concluded that “society has other ways to lighten the burdens of costly but unavoidable accidents on a valued industry than to let them fall haphazardly on the industry’s neighbors.”

     In determining whether an activity rises to the level of an “abnormally dangerous” activity, the court stated:

Whether the danger is so great as to give rise to strict liability depends both on the probability and on the magnitude of the threatened harm.  If the consequences of a mishap are potentially lethal or highly destructive of health or property, a slight likelihood that they will occur suffices, even if the harm in the actual occurrence is less severe.  Conversely, we have held that even when the risk ‘only moderately threatens economic activities rather than harm to life, health or property or environment,’ the activity may carry strict liability if the consequences are highly probable or, as stated in Bella, if the activity can be carried on ‘only with a substantially uncontrollable likelihood that the damage will sometimes occur.’

     The court rejected the premise that the court should consider the utility and value of the activity to the community.  It reasoned that the determination of the utility and value of a particular activity to the community is too subjective.  Furthermore, a person is not immune from strict liability simply because the activity is appropriate for the place in which it was conducted.  However, “a dangerous activity is not extraordinarily so if nearly everyone routinely does it or expects to have it done for him.”  The provision of electricity or irrigation water are examples of activities that may be dangerous but are not “abnormally” so because nearly everyone expects that these will be provided for them.