Asplundh Tree Experts, Inc. v. Mason, 96-468

• Decision Date: 31 January 1997
• Docket Number: No. 96-468,96-468
• Citation: 693 So.2d 44
• Parties: 22 Fla. L. Weekly D329 ASPLUNDH TREE EXPERTS, INC., a foreign corporation, Appellant, v. Gerald MASON, Appellee.
• Court: Florida District Court of Appeals

Page 44

693 So.2d 44

22 Fla. L. Weekly D329

ASPLUNDH TREE EXPERTS, INC., a foreign corporation, Appellant, v. Gerald MASON, Appellee.

No. 96-468.

District Court of Appeal of Florida First District.

Jan. 31, 1997.

Rehearing Denied May 8, 1997.

Marjorie M. Cain and Michael J. Thomas of Fuller, Johnson & Farrell, Tallahassee, for Appellant.

Thayer M. Marts, Marianna, for Appellee.

JOANOS, Judge.

This is an appeal from an order denying defendant/appellant's motion for a directed verdict. We reverse.

Appellee owned a herd of 56 buffalo which he had been cultivating for some thirteen years. He had bred some of them and acquired some from other sources. In the thirteen years he owned the buffalo, only two had died. One died giving birth to a calf, and another died of old age. Appellee and others testified that before July 1993, the buffalo were in excellent condition, however, the buffalo began dying, and within one year, the entire herd had died. After making some inquiries shortly after the initial deaths, appellee learned that appellant had sprayed herbicide on the utility right-of-way near his pastures a few days before the first deaths. Further investigation revealed that the buffalo may have died of malignant catarrhal fever.

Dr. Hawkins, a veterinarian who served as appellee's expert witness, testified that the herbicide overspray or drift line was well demarcated in the pasture, with wilted, yellowed grass. He took tissue samples from several of the dead buffalo, as well as samples of forage materials from the pasture and samples of the rumen, or stomach contents, of the dead buffalo. These samples were forwarded to Dr. D'Andrea of the Diagnostic Lab at Auburn University. The tissue samples revealed no significant concentrations of nitrates in the buffalos' systems. The results of testing the forage samples showed that the forage materials contained 190 parts per million ("PPM") of nitrates. Dr. Hawkins explained that when plants wilt, the nitrate concentration in the plant increases. Dr. Hawkins ultimately opined that the buffalo died because: "they were exposed to nonacute levels of nitrate in these plants that were wilted and there was not a significant level to cause acute death, but there was a significant enough level to cause stress to occur to the animals, which lowers their immunity to fight off infection, which allowed this virus that causes malignant catarrhal fever to kill the animals." On that theory, appellee sued appellant for negligence in the application of herbicide in such a manner as to permit overspray or drift onto appellee's pastures.

Asked on cross-examination whether 190 PPM of nitrate was enough to cause immunosuppression, Dr. Hawkins responded that he did not know. In addition, on this question of whether 190 PPM was enough to cause immunosuppression, he deferred to Dr. D'Andrea, "if he is made aware of all the qualitative factors involved in this." Dr. Hawkins also indicated the literature was inconclusive as to whether stress was required to produce malignant catarrhal fever.

Dr. D'Andrea, a veterinary pathologist, who served as an expert witness for the defense, tested the tissue, rumen, and forage samples sent by Dr. Hawkins. He concurred in the diagnosis of probable malignant catarrhal fever, but said that 190 PPM of nitrate was not enough to cause stress if consumed by the buffalo.

The jury returned a verdict finding appellant 80% negligent and awarded damages in the amount of $153,500. Appellant contends...