Bennett v. Larsen Co., 82-1461

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: CALLOW
• Citation: 118 Wis.2d 681,348 N.W.2d 540
• Parties: Robert J. BENNETT and Patricia Ann Bennett, and Raymond C. Meyer, d/b/a Ray's Honey Farm, Plaintiffs-Appellants-Petitioners, v. The LARSEN COMPANY, a Wisconsin corporation, and Hartford Accident & Indemnity Company, an insurance corporation, and Ag-Aire, Inc., Defendants-Respondents.
• Docket Number: No. 82-1461,82-1461
• Decision Date: 24 July 1984

Page 540

348 N.W.2d 540 118 Wis.2d 681 Robert J. BENNETT and Patricia Ann Bennett, and Raymond C.
Meyer, d/b/a Ray's Honey Farm,
Plaintiffs-Appellants-Petitioners,
v.
The LARSEN COMPANY, a Wisconsin corporation, and Hartford
Accident & Indemnity Company, an insurance
corporation, and Ag-Aire, Inc.,
Defendants-Respondents. No. 82-1461. Supreme Court of Wisconsin. Argued March 28, 1984.
Decided May 30, 1984.
Motions for Reconsideration Denied July 24, 1984. ^*

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[118 Wis.2d 684] Samuel Zelpe, Sheboygan (argued), for plaintiffs-appellants-petitioners; Rabinovitz, Sonnenburg & Zelpe, Sheboygan, on brief.

Peter S. Nelson, Appleton (argued), for defendants-respondents, Larsen Co. and Hartford Acc. & Indem. Co.; Joseph J. Beisenstein and Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., Appleton, on brief.

Catherine E. Tinker, Chicago, Ill. (argued), for defendant-respondent, Ag-Aire, Inc.; Thomas W. Conklin and Gabert & Williams, Appleton, and Conklin & Adler, Ltd., Chicago, Ill., on brief.

CALLOW, Justice.

This is a review of a decision ¹ of the court of appeals affirming the judgment [118 Wis.2d 685] of the circuit court for Outagamie county, Judge Gordon Myse, dismissing an action for damages for the death of honeybees allegedly caused by negligent pesticide spraying. We reverse in part and affirm in part and remand the cause for further proceedings consistent with this opinion.

The issues presented on appeal are whether the circuit court erred (1) in failing to instruct the jury that violation of label directions in spraying pesticides constitutes negligence per se; that pesticide users are strictly liable for any harm they cause because pesticide spraying is an ultrahazardous activity; that pesticide users owe a higher duty of care to those who may be harmed by pesticides because pesticides are a dangerous substance; and (2) in failing to grant post-trial motions to change the jury's verdict answers, grant judgment notwithstanding the verdict, or grant a new trial.

The plaintiffs in this case are beekeepers in Outagamie county. In 1977 and 1978, the plaintiffs maintained a number of bee colonies throughout the county, with some of the hives located near sweet corn fields.

The defendant, The Larsen Company, leased land in 1977 and 1978 on which sweet corn was grown under contract with area farmers for the company's food processing operation. Under the growing contract with the farmers, Larsen was responsible

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for monitoring and treating the fields for insect problems.

In 1977, Larsen employees found that some sweet corn fields were infested with corn borers and earworms. In order to control these pests, Larsen contracted with Ag-Aire, Inc., to spray the pesticide Sevin on the affected fields. The Sevin label included the following warning:

"BEE CAUTION: MAY KILL HONEYBEES IN SUBSTANTIAL NUMBERS

"This product is highly toxic to bees exposed to direct treatment or residues on crops....

[118 Wis.2d 686] "Do not use when value of honeybees as pollinators is more important than insect control. Before applying, warn beekeepers to locate hives beyond bee flight range until one week after application or to take other equally effective precautions."

Sevin is a slow-acting pesticide which kills honeybees after they ingest contaminated pollen. Its residual toxic effect remains on the sprayed crops for three to six days, but one witness testified that its toxic effect on stored pollen can last for several months. Larsen's records indicated that several thousand acres of sweet corn were sprayed with Sevin during August, 1977. The record indicates that the defendants did not warn or take any steps to warn affected beekeepers in 1977.

On August 13, 1977, Robert Bennett observed a helicopter aerially spraying a sweet corn field near his home. After the spraying Bennett noticed that many of the bees in an observation hive at his home were dead or dying. Bennett also observed severe damage to several other of his colonies in the vicinity of the sprayed field. Although Bennett was unable to identify the helicopter as belonging to Ag-Aire, Inc., company records showed that Larsen fields were sprayed on August 13, 1977, and testimony revealed that the sprayed field was owned by a farmer growing sweet corn under contract to Larsen. The next day Bennett saw Larsen trucks and personnel in the sprayed field. On August 17, 1977, Henry Malchow, the Agricultural Stabilization and Conservation Service (ASCS) executive director for Winnebago County, inspected the Bennett hive locations and reported that the bees had been killed by exposure to Sevin.

In early 1978, in response to problems raised by bee kills from pesticide spraying, the Outagamie County Beekeepers Association formed a pesticide committee. [118 Wis.2d 687] The committee's purpose was to gather and provide information on the use of pesticides and to foster communication between beekeepers and pesticide users. At the committee's first meeting in February, 1978, a program was begun to have beekeepers mark their hive locations on plat maps which would also be marked by Larsen with fields which might be subject to pesticide spraying. Carl Hanamann, chief fieldman for Larsen, attended this meeting and was subsequently provided with plat maps showing the hive locations and a list of beekeepers, their addresses and telephone numbers, and the townships where they kept their hives.

In the summer of 1978, inspections of Larsen's corn fields revealed that they were again infested with corn borers and earworms. On July 18, 1978, Hanamann telephoned Paula Jorgensen, the chairperson of the pesticide committee, to inform her that Larsen planned to spray certain fields as soon as the weather cleared. Hanamann called Jorgensen on July 20, 1978, to indicate to her when and where Larsen was spraying. After receiving this call, Jorgensen called Bennett and Raymond Meyer to inform them that fields near their hives were to be sprayed. Neither Bennett nor Meyer took any steps to prevent the bees from foraging in or near the affected fields.

After the July 1978 sprayings, Bennett and Meyer inspected their hives and found many to be severely damaged. In reports filed by ASCS inspectors, the cause of bee deaths was identified as exposure to the pesticide Lannate, which Larsen records indicated was used in spraying during the

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summer of 1978. The Lannate label included the following language:

"This product is toxic to bees and should not be applied when bees are actively visiting the area. Apply late in evening or early morning where honey bees visit fields...."

[118 Wis.2d 688] Lannate is a mixture formulation which contains both fast-acting and slow-acting chemicals. Thus, it kills bees on contact, but also has a residual toxic effect of up to three to six days.

The Bennetts and Meyer filed a complaint alleging that the defendants negligently applied the pesticides in 1977 and 1978 and that these actions led to the destruction of numerous bee colonies. The Bennetts sought damages for the August 1977 and July 1978 sprayings; Meyer sought damages only for the July 1978 sprayings. After trial the jury found that The Larsen Company, Ag-Aire, Inc., and Ag-Aire, Inc., were not negligent in either the 1977 or 1978 sprayings. The jury also found that the Bennetts and Meyer were negligent for failing to take reasonable precautions to protect their bees from damage during the July 20-23, 1978, sprayings. The circuit court denied the plaintiffs' motions for a change of answers to certain verdict questions, for judgment notwithstanding the verdict, and for a new trial. The circuit court on June 30, 1982, entered judgment dismissing the plaintiffs' complaint on the merits and with prejudice.

The plaintiffs appealed the judgment to the court of appeals. The plaintiffs claimed that the circuit court erred in failing to instruct the jury that the violation of label directions constitutes negligence per se, that pesticide users are strictly liable for damages they cause because pesticide spraying is an ultrahazardous activity, and that pesticide users have a higher than ordinary duty of care because they work with a dangerous substance. The plaintiffs also contended that the circuit court erred in not granting their posttrial motions.

The court of appeals affirmed the judgment. The court concluded that, even if the defendants owed some duty by virtue of the applicable administrative regulations or statutes mandating pesticide usage in conformity [118 Wis.2d 689] with label directions, the evidence showed that the defendants did not violate the label directions in either 1977 or 1978. The court concluded that pesticide spraying should not be considered an ultrahazardous activity and that, therefore, no jury instruction on strict liability was warranted. The court also concluded that, even if the defendants owed a higher than ordinary duty of care to those whose bees might come into contact with the pesticides, the duty was satisfied by the warnings given in 1978. Finally, the court determined that the trial court did not err in denying the plaintiffs' posttrial motions because the evidence was sufficient to support the jury's verdict that the defendants were not negligent in their sprayings and that the plaintiffs were negligent in failing to take precautions in 1978 after they had been warned of the sprayings.

The plaintiffs argue that the circuit court should have instructed the jury that administrative regulations and state statutes place upon pesticide users the duty to follow label directions and that the failure to adhere to label directions constitutes negligence per se. ² The plaintiffs[118 Wis.2d 690] also contend

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that this duty applies to bees whether they are on or off the sprayed field.

At common law, the landowner has the right to make use of the land as he or she sees fit. This privilege, however, is qualified by due regard for...