Lindblom v. Sun Aviation, Inc.

• Decision Date: 08 April 2015
• Docket Number: No. 27080.,27080.
• Citation: 862 N.W.2d 549
• Parties: Murray LINDBLOM and Georgine Lindblom, Plaintiffs and Appellants, v. SUN AVIATION, INC., a South Dakota Corporation, Jeff Muhlenkort, individually, and Nicholas P. Hybertson, Defendants and Appellees.
• Court: South Dakota Supreme Court

862 N.W.2d 549

Murray LINDBLOM and Georgine Lindblom, Plaintiffs and Appellants

v.SUN AVIATION, INC., a South Dakota Corporation, Jeff Muhlenkort, individually, and Nicholas P. Hybertson, Defendants and Appellees.

No. 27080.

Supreme Court of South Dakota.

Considered on Briefs Feb. 17, 2015.

Decided April 8, 2015.

Cathy A. Knecht, Sioux Falls, South Dakota, Attorney for appellants.

Steven K. Huff, Beau C. Barrett of Johnson, Miner, Marlow, Woodward & Huff, Prof., LLC, Yankton, South Dakota, Attorneys for appellees.

Opinion

GILBERTSON, Chief Justice.

[¶ 1.] Murray and Georgine Lindblom appeal the circuit court's judgment denying relief on their claim against Sun Aviation, Inc., Jeff Muhlenkort, and Nicholas Hybertson (collectively, “the Defendants”) for negligently spraying pesticide on the Lindbloms' cornfield. The Lindbloms assert the circuit court should have given deference to a South Dakota Department of Agriculture (the Department) investigator's determination that Muhlenkort violated a safety statute. The Lindbloms further assert that the circuit court erred in concluding the Lindbloms did not prove the Defendants committed negligence—as a matter of law or otherwise. We affirm.

Facts and Procedural History

[¶ 2.] In June 2011, Hybertson hired Muhlenkort to aerially apply herbicide to a cornfield located near Wakonda in Clay County, South Dakota. On the evening of June 24, 2011, Muhlenkort sprayed Hybertson's field with “Roundup WeatherMAX”—an herbicide that purportedly damages or kills any vegetation that is not genetically modified to withstand the herbicide. The Lindbloms' cornfield, which was not modified to tolerate Roundup, was located to the north of Hybertson's field, across a 66–foot–wide, paved road flanked by ditches on both sides. Muhlenkort, who has held federal and state licenses for aerial spraying of crops since 1981, began loading the chemical at 7:45 p.m., took off for Hybertson's field at 8:00 p.m., began spraying around 8:20 or 8:30 p.m., and arrived back at his airfield at approximately 9:10 p.m. He testified that all available information indicated the winds had slowed to less than ten miles per hour by 8:00 p.m., and he tested for drift prior to spraying by discharging and observing smoke. The labeling requirements for Roundup prohibit application—by air or ground—in wind speeds in excess of ten miles per hour.

[¶ 3.] Brad Trudeau, the owner of Centerville Ag—another company that sells and applies herbicides—witnessed Muhlenkort's application of the herbicide. Trudeau testified that he saw Muhlenkort flying about a quarter mile south of the Lindbloms' field, that the wind was blowing from the southeast at about 13 or 14 miles per hour, and that some of the herbicide drifted toward the Lindbloms' field. Several days after Muhlenkort applied the fertilizer to the Hybertson field, corn on the southern end of the Lindbloms' field appeared to begin dying. The Lindbloms contacted Hybertson, who confirmed that Roundup was sprayed on his field on June 24. Hybertson then contacted the Department to report the Lindbloms' concerns. The Department dispatched Virgil Sinning—an agricultural inspector for the Department for 27 years with an additional 16 years of experience in applying agricultural chemicals prior to his work with the Department—to investigate.

[¶ 4.] Sinning inspected the Lindbloms' cornfield on July 6, taking samples and photographs. He walked from the north end to the south end, taking one sample at about one-third to one-half of the way into the field, another at about two-thirds of the way into the field, and a number of samples of the rows on the south end of the field. Sinning observed that the majority of the damage was located at the southern end of the Lindbloms' field, although he noted the first couple of rows closest to Hybertson's field were less damaged. Sinning theorized that the first several rows were protected by tall grass growing in the ditch. The samples indicated the presence of glyphosate, the active ingredient in Roundup. Although no evidence was introduced establishing the amount of the chemical required to damage or kill unmodified corn, Sinning concluded the damage to the Lindbloms' crop was caused by Roundup drifting from Muhlenkort's aerial application of the herbicide to Hybertson's field. The Department also determined that Muhlenkort sprayed in wind speeds ranging from eight to fourteen miles per hour. Based on this data and Sinning's report, the Department concluded Muhlenkort did not apply the Roundup in accordance with its label requirements. The Department informed Muhlenkort that it intended to pursue a civil penalty against him unless he agreed to pay $385 in settlement. Muhlenkort paid the settlement and the Department did not take any further action.

[¶ 5.] The circuit court, however, heard other evidence favorable to the Defendants. In reaching its conclusion that Muhlenkort's conduct did not conform to label requirements, the Department relied on wind speed data collected from locations near Beresford and Yankton.¹ The Department initially determined that wind speeds ranged from eight to fourteen miles per hour at the time Muhlenkort applied the herbicide to Hybertson's field. This data reflected conditions near Beresford around 8:00 p.m. Beresford data for 9:00 p.m. indicated wind speeds of six miles per hour with gusts up to eleven miles per hour. Data for the Yankton area indicated wind speeds of approximately nine miles per hour between 8:15 and 9:15 p.m. The National Data Center also reported wind speeds of nine miles per hour around Yankton during this time, with no gusts after 7:00 p.m.

[¶ 6.] The circuit court also heard evidence of other possible causes for the damage to the Lindbloms' corn. In the month before the damage manifested, Centerville Ag applied “Verdict,” another herbicide, to the Lindbloms' corn approximately five days after it was planted. The warning label for Verdict indicates it can cause delayed emergence or stunted growth in cool conditions or where there is excessive moisture. Muhlenkort introduced aerial photographs taken on July 2 showing areas of the Lindbloms' cornfield that suffered damage due to excessive moisture. Some photographs show standing water at the southern end of the field. The Lindbloms also acknowledged their cornfield suffered damage from the wet conditions.

[¶ 7.] The Lindbloms also own a soybean field located immediately to the east of their cornfield. No barrier separates the Lindbloms' corn and soybean fields. On June 30, prior to Sinning's inspection, Centerville Ag applied Roundup—the same herbicide that Muhlenkort sprayed on Hybertson's field—to the Lindbloms' soybean field using a ground sprayer. The circuit court heard evidence indicating there were stronger winds active at this time than when Muhlenkort sprayed Hybertson's field.

[¶ 8.] The Lindbloms brought a claim for damages against the Defendants based on negligence and trespass theories. The action was tried to the circuit court, which ruled in favor of the Defendants. The Lindbloms appeal, raising two issues on appeal² :

1. Whether the circuit court was required to give deference to the Department's determination that Muhlenkort violated SDCL 38–21–44(2).

2. Whether the evidence is sufficient to sustain the circuit court's determination that Muhlenkort did not commit negligence.

Standard of Review

[¶ 9.] “In a bench trial, the circuit court is the finder of fact and sole judge of credibility.” Osman v. Karlen & Assocs., 2008 S.D. 16, ¶ 30, 746 N.W.2d 437, 445.

We will not set aside a circuit court's findings of fact unless they are clearly erroneous. A circuit court's finding is clearly erroneous if, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been made. All conflicts in the evidence must be resolved in favor of the circuit court's determinations. The credibility of the witnesses, the weight to be accorded their testimony, and the weight of the evidence must be determined by the circuit court and we give due regard to the circuit court's opportunity to observe the witnesses and the evidence.... On review the successful party is entitled to the benefit of his version of the evidence and of all favorable inferences fairly deducible therefrom.

State v. Fifteen Impounded Cats, 2010 S.D. 50, ¶ 26, 785 N.W.2d 272, 281–82 (quoting In re Estate of Pringle, 2008 S.D. 38, ¶ 18, 751 N.W.2d 277, 284) (internal quotation marks omitted).

Analysis and Decision

[¶ 10.] 1. Whether the circuit court was required to give deference to the Department's determination that Muhlenkort violated SDCL 38–21–44(2).

[¶ 11.] The Lindbloms argue the circuit court should have “give[n] deference to the Department of Agriculture's investigation and determination of a violation of SDCL 38–21–44(2).” The Lindbloms claim the Department found that “there was no doubt that drift had taken place” and that “the damage to Appellants' field came from the Round-up sprayed on the Hybertson field because the damage was across the south end.” It should be noted at the outset, however, that the first “finding” referenced by the Lindbloms is a statement appearing only in Sinning's trial testimony. The second “finding” is actually the circuit court's summary of Sinning's testimony. The only statement that we see in the record regarding a finding of the Department itself is its statement in a letter to the Lindbloms that “Jeff Muhlenkort was found in violation and [sic] SDCL 38–21–44(2), applying a pesticide inconsistent with the label. The matter was settled with the department by a payment of $385.00, in lieu of a civil penalty.” The settlement agreement entered into by Muhlenkort and the Department reflects this as well.

[¶ 12.] In support of their claim, however, the Lindbloms cite a number of decisions from other jurisdictions for a proposition embodied in SDCL 1–26–36 :

The court shall give great weight to the findings made and

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