Ackles v. Luttrell
| Decision Date | 11 April 1997 |
| Docket Number | No. S-95-257,S-95-257 |
| Citation | 561 N.W.2d 573,252 Neb. 273 |
| Parties | , Prod.Liab.Rep. (CCH) P 15,046 Gary E. ACKLES, Appellant, v. Richard F. LUTTRELL et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld on appeal in the absence of an abuse of that discretion.
2. Summary Judgment. Summary judgment is to be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
3. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.
4. Federal Acts: Claims. Failure-to-warn and labeling-based claims brought under common-law causes of action against manufacturers of pesticides are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act.
5. Negligence: Proof. In order to succeed in an action based on negligence, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.
6. Negligence: Pleadings. A bare allegation of proximate cause and damages without providing information as to what negligence occurred fails to set forth a negligence cause of action.
7. Summary Judgment. A motion for summary judgment is not intended to be used as a substitute for a demurrer or motion for judgment on the pleadings.
Mandy L. Strigenz and E. Terry Sibbernsen, of E. Terry Sibbernsen, P.C., Omaha, and J. Marvin Weems, P.C., Ord, for appellant.
Brian D. Nolan, of Nolan, Roach & Lautenbaugh, Omaha, and Daniel J. Connolly and Mark J. Carpenter, of Faegre & Benson, P.L.L.P., Minneapolis, MN, for appellee Elf Atochem North America, Inc.
The appellant, Gary E. Ackles, brought this negligence and strict liability action against, among others, the appellee Pennwalt Corporation, now known as Elf Atochem North America, Inc. (Pennwalt), seeking damages for personal injuries sustained as the result of being exposed to an insecticide manufactured by Pennwalt. The district court granted Pennwalt's motion for summary judgment, finding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted Ackles' failure-to-warn and labeling based claims. We affirm in part, because we conclude that FIFRA preempts labeling-based claims. However, we remand Ackles' negligence cause of action because it did not effectively state a cause of action, thereby making a summary judgment disposition inappropriate.
On August 2, 1991, Ackles, a U.S. mail carrier, was delivering mail when he became exposed to Penncap-M which was being sprayed on an adjacent cornfield by a crop duster. Penncap-M is an insecticide manufactured by Pennwalt. Upon being exposed to the insecticide, Ackles experienced nausea, shaking, diarrhea, and vomiting. Since the exposure, Ackles has experienced severe physical ailments and has been declared disabled from his job as a postal carrier.
Penncap-M, like all insecticides, is subject to regulation and approval by the federal Environmental Protection Agency (EPA). See 7 U.S.C. § 136a(a) (1988). Pursuant to FIFRA, 7 U.S.C. § 136 et seq. (1988 & Supp. II 1990), the EPA must review and approve proposed labeling prior to any sale or distribution of the product. In the instant case, it is undisputed that the EPA reviewed and approved the Penncap-M labeling prior to Ackles' injury.
Ackles filed suit against the crop duster and Pennwalt. In his sixth amended petition, Ackles brought two causes of action against Pennwalt: one sounding in negligence, with the second based on strict liability in tort. The crux of these causes of action was that Pennwalt failed to warn or convey appropriate information regarding Penncap-M to those persons applying the insecticide. Ackles contended in both causes of action that this failure was the proximate cause of his personal injuries.
In its order, the district court overruled the crop duster's motion for summary judgment, but granted Pennwalt's motion for summary judgment, holding that
[Ackles'] failure to warn and labeling claims, found in ... Causes of Action 2 and 3 of the 6th Amended Petition, present a state law challenge to the EPA-approved Penncap-M label, which challenge is expressly preempted by § 136v(b) of the Federal Insecticide Fungicide and Rodenticide Act, 7 U.S.Code § 136 et seq.
In a later order, the district court overruled Ackles' motion for new trial. Ackles appeals.
Ackles contends the district court erred in overruling his motion for a new trial because (1) it was error to find that his failure-to-warn claim, in the second cause of action, was expressly preempted by FIFRA and (2) it was error to find that his labeling claim, in the third cause of action, was also preempted by FIFRA.
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld on appeal in the absence of an abuse of that discretion. Menkens v. Finley, 251 Neb. 84, 555 N.W.2d 47 (1996); Farmers & Merchants Bank v. Grams, 250 Neb. 191, 548 N.W.2d 764 (1996).
Summary judgment is to be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Boyd v. Chakraborty, 250 Neb. 575, 550 N.W.2d 44 (1996); Bogardi v. Bogardi, 249 Neb. 154, 542 N.W.2d 417 (1996).
When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997); Olson v. SID No. 177, 251 Neb. 380, 557 N.W.2d 651 (1997).
This appeal presents the issue of whether failure-to-warn and labeling-based claims brought against the manufacturer of a chemical that is regulated by FIFRA are preempted.
We begin with Ackles' assigned error concerning the granting of summary judgment in favor of Pennwalt against Ackles' strict liability cause of action. In this cause of action, Ackles contends Pennwalt is strictly liable for placing a defective product, namely Penncap-M, into the stream of commerce. According to the sixth amended petition, the defects referred to are the following, and Pennwalt was negligent:
a. In failing to adequately and properly warn users of, and other persons who will forseeably [sic] be endangered by, the product known as Penncap-M of the toxic nature of the product;
b. In failing to provide written instructions to aerial applicators of the product known as Penncap-M as to the manner in which the product should be applied; and,
c. In placing on the market for use a product which is toxic and creates an unreasonably dangerous condition when human beings such as the Plaintiff become exposed to the product.
The district court granted summary judgment in favor of Pennwalt on the third cause of action, holding that FIFRA preempted the claim. Ackles appeals that ruling, contending FIFRA does not preempt his labeling claim put forth in the third cause of action. We note that an examination of subparagraph c of paragraph 34 reveals that it deals exclusively with the allegation that Penncap-M is "unreasonably dangerous" and as such does not appear, on its face, to be a Originally enacted in 1947, FIFRA establishes a comprehensive scheme for the regulation of pesticide labeling and packaging. See Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991). The administrative agency in charge of setting appropriate regulations is the EPA. Before a pesticide may be sold, it must be registered and its labeling approved by the EPA. § 136a(a). The review process requires that an applicant submit a proposed label to the EPA for approval. This label must address numerous concerns, including ingredients, directions for use, and adverse effects of the product. See, § 136a(c); 40 C.F.R. § 152.50 & part 156 (1996). In addition to the written material on the actual container, the term "label" also includes written, printed, or graphic material accompanying the container, to which reference is made. § 136(p). Once the label is approved, FIFRA makes it unlawful for any person to alter it without the prior approval of the EPA. See § 136j(a)(2)(A).
labeling claim. However, because Ackles' sole assigned error concerning his strict liability action relates only to the district court's entering summary judgment against his labeling claim in the strict liability cause of action, we offer no opinion as to whether subparagraph c is itself preempted by FIFRA, insofar as that issue was not preserved for appeal. See Daehnke v. Nebraska Dept. of Soc. Servs., 251 Neb. 298, 557 N.W.2d 17 (1996) (). Therefore, our concern in this appeal is whether FIFRA preempts labeling-based strict liability claims against a manufacturer of an insecticide, such as those claims set forth in subparagraphs a and b.
FIFRA specifically sets forth the authority the states shall have concerning the labeling of pesticides. Section 136v provides, in part:
(a) In general
A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by [FIFRA].
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA].
It is the preemption effect of subsection (b) that is at issue in this case. We are asked to determine whether this provision preempts a common-law cause of action brought against a manufacturer based on inadequate labeling if the manufacturer complied with the requirements of FI...
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