Anderson v. STATE, DNR, No. A03-679.

• Decision Date: 03 March 2005
• Docket Number: No. A03-679.
• Citation: 693 N.W.2d 181
• Parties: Jeffrey ANDERSON, et al., Appellants, v. STATE of Minnesota, DEPARTMENT OF NATURAL RESOURCES, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent, International Paper Co., f/k/a Champion International Corporation, Respondent, and Steven Ellis, Appellant, v. State of Minnesota, Department of Natural Resources, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent.
• Court: Minnesota Supreme Court

693 N.W.2d 181

Jeffrey ANDERSON, et al., Appellants, v. STATE of Minnesota, DEPARTMENT OF NATURAL RESOURCES, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent, International Paper Co., f/k/a Champion International Corporation, Respondent, and Steven Ellis, Appellant, v. State of Minnesota, Department of Natural Resources, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent.

No. A03-679.

Supreme Court of Minnesota.

March 3, 2005.

Gary A. Van Cleve, Christopher J. Deike, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis, MN; Stephen F. Rufer, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., Timothy A. Rundquist, Rundquist Law Office, Fergus Falls, MN, for Appellants.

Mike Hatch, Attorney General, Jerome L. Getz, Assistant Attorney General, St. Paul, MN, for Respondent DNR.

Alexandra B. Klass, Sara J. Peterson, Dorsey & Whitney L.L.P., Minneapolis, MN, for Respondent International Paper.

Craig E. Johnson, Johnson, Ramstad & Mottinger, P.L.L.P., Fargo, ND, for Respondent Terry Ricks, and T.L.T. Aerial AG. Service, Inc. Marci L. Iseminger, Crary, Huff, Inkster, Sheehan, Ringgenberg, Hartnett & Storm, Sioux City, IA, and Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for amici curiae Sioux Honey Association Cooperative.

John P. Mandler, Kristin R. Eads, Faegre & Benson L.L.P., Minneapolis, MN, for amici curiae CropLife America, Minnesota Agricultural Aircraft Association and Minnesota Crop Production Retailers.

Bruce M. Kleven, Attorney at Law, St. Paul, MN, for amicus curiae Minnesota Farm Bureau Federation.

Daniel Weaver, Vice President, Navasota, TX, for amicus curiae American Beekeeping Federation, Inc.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, RUSSELL A., Justice.

We granted the petition of appellants Jeffrey Anderson, James Whitlock and Steven Ellis (the beekeepers) to review a decision of the court of appeals affirming summary judgment in favor of respondents Department of Natural Resources (DNR) and International Paper Company (IP) on claims of negligence, negligence per se and nuisance and reversing the denial of summary judgment for the DNR on a portion of the common-law negligence claim. We affirm in part, reverse in part and remand.

Appellants Steven Ellis, Jeffrey Anderson, and James Whitlock are migratory commercial beekeepers who maintain beehives in Douglas, Pope, Todd, Stearns, Otter Tail, and Morrison counties. The beekeepers do not own the land on which they place their hives; and in lieu of rent, the beekeepers give a "thank-you gesture" of honey or a small amount of money to the landowners. The hives are located on land near privately owned groves or "plantations" of poplar trees grown for paper production and fuel research. The DNR and IP either own or manage the groves, and the beekeepers hold no interest in them.

When cottonwood leaf beetles began invading the DNR and IP groves in 1997 and 1998, respondents retained commercial spray operators to apply Sevin XLR Plus, a carbaryl-based pesticide toxic to bees. On one occasion, July 21, 1999, the DNR arranged through a chemical supplier to have an independent contractor spray a hybrid poplar plantation close to the location of some of Ellis' hives. During this spraying, which the parties refer to as the "Swanson incident," landowner Dale Swanson estimated that pesticide was applied "perhaps a hundred feet" from 32 of Ellis' bee colonies. Minnesota Department of Agriculture laboratory analysis confirmed that at least some of Ellis' bees died from carbaryl poisoning in the apparent "overspray" incident. During other sprayings, the beekeepers allege that the DNR and IP knew bees were foraging on land that the respondents either own or manage but directed that Sevin XLR Plus be applied anyway, resulting in dead bees and infected hives.

The beekeepers commenced actions alleging, inter alia, that (1) the DNR and IP negligently created an unreasonable risk of harm to the beekeeping operations; (2) that the DNR and IP were negligent per se, in violation of the Minnesota Pesticide Control Act, which prohibits the use of pesticides in a manner that is inconsistent with label directions; and (3) that the DNR and IP created a private nuisance. Ellis subsequently dismissed his claims against IP upon discovering that his hives were not near IP's land. All parties moved for summary judgment. The district court granted summary judgment for respondents, dismissing all claims except for the claim against the DNR for damages resulting from the Swanson incident. On the appeal of the beekeepers and by notice of review by the DNR, the court of appeals reversed the denial of the dismissal of the overspray claim against the DNR and affirmed the dismissal of the remaining claims. Anderson v. Dep't of Natural Res., 674 N.W.2d 748, 760 (Minn.App.2004).

I.

Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn.2001); Rathbun v. W.T. Grant Co., 300 Minn. 223, 229, 219 N.W.2d 641, 646 (1974). On appeal from summary judgment, we consider whether the lower courts erred in applying the law and whether there are any genuine issues of material fact for trial. Northern States Power Co. v. Minnesota Metro. Council, 684 N.W.2d 485, 491 (Minn.2004). The existence of a duty generally is a question of law for this court to decide de novo. H.B. and S.B. By and Through Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn.1996).¹

Landowners owe a duty to use their property so as not to injure that of others. Farrell v. Minneapolis & R.R. Ry. Co., 121 Minn. 357, 361, 141 N.W. 491, 492 (1913); Dan B. Dobbs, The Law of Torts § 231 (2000) (landowners owe a duty not to create "a serious interference with [neighboring landowers'] use and enjoyment of land by pollution or the like."). We have explained this rule over many years and in many contexts. In Lorshbough v. Township of Buzzle, we held that a county in charge of a township dump was liable for forest fire damage to the plaintiffs' real property as well as personal property where it was "reasonably foreseeable" that conditions at the dump violative of Minnesota Pollution Control Agency standards would cause the damage. 258 N.W.2d 96, 102 (Minn.1977). In Sime v. Jensen, we recognized that a landowner who elevates his land above the level of adjoining land will act reasonably by constructing a retaining wall to keep soil away from his neighbor. 213 Minn. 476, 480, 7 N.W.2d 325, 327 (1942). In Johnson v. Seifert, we held that an owner of lakefront property may use the abutting lake for recreational purposes, "provided such use is reasonable[.]" 257 Minn. 159, 168-69, 100 N.W.2d 689, 696-97 (1960). In Wilson v. Ramacher, we held that landowners may divert excess surface water to neighboring property as long as doing so constitutes a "reasonable use" based on balancing "whether the benefit to the diverter's land outweighs the harm to the land receiving the surface waters." 352 N.W.2d 389, 393-94 (Minn.1984). In Peterson v. Balach, we charged land entrants as well as land possessors to act reasonably as we abolished distinctions between licensees and invitees. 294 Minn. 161, 173-74, 199 N.W.2d 639, 647 (1972). In Doe v. Brainerd International Raceway, Inc., we recognized that an auto-racing facility must be "reasonably safe for its patrons, which includes controlling and supervising other patrons to prevent foreseeable harm." 533 N.W.2d 617, 621 (Minn.1995). Given the landowner's general duty to adjoining or nearby premises, liability has been regularly imposed in cases concerning pesticide spray that drifted and killed bees. See, e.g., McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138, 139 (1951)

; Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454, 459 (Ariz.1948); Miles v. A. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260, 1263 (1937); see generally Jonathan M. Purver, Liability for injury caused by spraying or dusting of crops, 37 A.L.R.3d 833, 863-68 (1971 & Supp.2004). However, liability has not been imposed in cases involving bees that came in contact with pesticides while foraging on the land of another on the theory that bees were trespassers. Lenk v. Spezia, 95 Cal.App.2d 296, 213 P.2d 47, 51 (1949) (holding that owner of honey bees could not recover for loss of bees that procured the pesticide while "trespassing on the fields of other owners of land * * * unless the poison was distributed wantonly, maliciously, or with the deliberate intent to injure or destroy the bees"); see also Bennett v. Larsen Co., 118 Wis.2d 681, 348 N.W.2d 540, 547-48 n. 3 (Wis.1984) (stating that while trespass theory might not be appropriate for honey bees that by nature are foragers, landowners owe no duty to protect the bees, "except that the land possessor cannot intentionally or wantonly destroy the bees").

In Minnesota, a landowner owes only a limited duty to trespassing livestock. Witherell v. Milwaukee & St. Paul Ry. Co., 24 Minn. 410, 414 (1878). Instead, liability for trespassing animals "could only be predicated on willful or wanton negligence." Lindemann v. Chicago, R.I. & P. Ry. Co., 154 Minn. 363, 365, 191 N.W. 825, 825-26 (1923). But once the landowner discovers the trespassing animals' presence, the landowner is "bound to use reasonable care to avoid injuring them." Witherell, 24 Minn. at 414.

Here, the beekeepers alleged that the DNR and IP intentionally sprayed pesticides with knowledge that foraging honey bees would be killed and/or would bring the pesticide back to the hives. Consequently, identifying the status of honey bees is unnecessary here because even if we were to classify bees as trespassers, a landowner is under a duty of reasonable care "once he knows or is on notice of both...