Boroughs v. Joiner

Decision Date10 September 1976
Citation337 So.2d 340
PartiesA. R. BOROUGHS et al. v. Leo JOINER. SC 1825.
CourtAlabama Supreme Court

Nicholas S. Hare and Nicholas S. Hare, Jr., Monroeville, for appellants.

Wyman O. Gilmore, Grove Hill, for appellee.

SHORES, Justice.

This appeal is from an order dismissing an action brought by the Boroughs against Leo Joiner. The complaint stated in substance that:

On July 26, 1973, Leo Joiner procured or employed J. F. Carter to make a custom application of pesticide by means of an aircraft in flight to his crops in the immediate vicinity of the fish pond of the plaintiffs in Monroe County; that the lake of the plaintiffs was built in 1965 at a cost of approximately $15,000 and was stocked with game fish and used as a recreation area for fishing and water pleasure and added to the value of the adjoining real estate; that on or about July 27, 1973, large numbers of fish started dying in the plaintiffs' pond as well as in another pond in the vicinity of plaintiffs' pond, and that the fish continued to die until all of the fish in the pond were dead; that the plaintiffs restocked the pond but the pond was still unfit for its original purpose; that scientific tests conducted on the fish and water established that the fish kill was caused by the pesticide Endrin; that Endrin is an intrinsically dangerous substance many times more toxic and lethal than DDT to humans, animals, and aquatic life; that the intrinsically dangerous qualities of Endrin are substantially augmented when spread by aerial application, and it is often impossible to contain the poison in the target area and it sometimes drifts several miles from the target area as it did in this case; that from July 26, 1973, through September 1, 1973, spraying operations were conducted on nearby farm land owned by defendant Joiner, the pesticide was permitted to escape or drift onto the property of plaintiffs and into plaintiffs' fish pond and, as a proximate consequence, the lake was contaminated and the fish died and the value of the plaintiffs' land was depreciated. The complaint also alleged that Carter was an independent contractor employed by Joiner to do the spraying.

The trial court dismissed the case on motion for summary judgment filed by Joiner on the ground that the plaintiff could not recover against the landowner unless it was alleged and proved that Carter, the man who flew the airplane and sprayed the landowner's cotton, was an agent of Joiner. The allegation was that Carter was an independent contractor. Summary judgment was granted on the pleadings and no affidavits were filed by either party.

The general rule in this state, and in most others, is that:

'. . . one is not ordinarily responsible for the negligent acts of his independent contractor. But this rule, as most others, has important exceptions. One is that a person is responsible for the manner of the performance of his nondelegable duties, though done by an independent contractor, and therefore, that one who by his contract or by law is due certain obligations to another cannot divest himself of liability for a negligent performance by reason of the employment of such contractor. (Citations Omitted).' Dixie Stage Lines v. Anderson, 222 Ala. 673, 675, 134 So. 23, 24 (1931).

See also: Alabama Power Co. v. Pierre, 236 Ala. 521, 183 So. 665 (1938).

It is also generally recognized that one who employs a contractor to carry on an inherently or intrinsically dangerous activity cannot thereby insulate himself from liability. Montgomery Street Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757 (1905); Mayer and Alderman of Birmingham v. McCary, 84 Ala. 469, 4 So. 630 (1887).

Although the courts have had some difficulty in stating a precise definition of activity which is inherently or intrinsically dangerous, the cases seem to agree that an intrinsic danger in an undertaking '. . . is one which inheres in the performance of the contract and results directly from the work to be done, not from the collateral negligence of the contractor, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it.' 41 Am.Jur.2d, Independent Contractors, § 41.

The rule is stated in Restatement of the Law, Torts 2d, Vol. 2, § 427 (1965), as follows:

'One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger.'

Crop dusting and spraying having been the subject of much litigation in recent years. Many courts have categorized such activity as inherently or intrinsically dangerous,...

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29 cases
  • Bain v. Colbert Cnty. Nw. Ala. Health Care Auth.
    • United States
    • Alabama Supreme Court
    • February 10, 2017
    ...duty exists in regulations issued by the Board or from an express or implied contract between Heath and HKH. In Boroughs v. Joiner, 337 So.2d 340 (Ala. 1976), this Court set forth the general rule that " ‘one is not ordinarily responsible for the negligent acts of his independent contractor......
  • Yancey v. Watkins
    • United States
    • Georgia Court of Appeals
    • March 24, 2011
    ...678 (1933) (citing Wisconsin and Kansas precedent). 9. Hammond Ranch Corp., 199 Ark. at 852, 136 S.W.2d 484. 10. See Boroughs v. Joiner, 337 So.2d 340, 343 (Ala.1976) (“We hold that aerial application of insecticides and pesticides falls into the intrinsically or inherently dangerous catego......
  • Pride of San Juan, Inc. v. Pratt
    • United States
    • Arizona Court of Appeals
    • January 29, 2009
    ...same conclusion.7 See, e.g., Emelwon, Inc. v. United States, 391 F.2d 9, 11-13 (5th Cir.1968) (citing S.A. Gerrard); Boroughs v. Joiner, 337 So.2d 340, 343 (Ala.1976); McCorkle Farms, Inc. v. Thompson, 79 Ark.App. 150, 84 S.W.3d 884, 891 (2002); Miles v. A. Arena & Co., 23 Cal.App.2d 680, 7......
  • Stovall v. Universal Const. Co., Inc.
    • United States
    • Alabama Supreme Court
    • June 4, 2004
    ...v. Atlanta B. & A. Ry., 163 Ala. at 105, 49 So. at 752). We explained the concept of "intrinsically dangerous" work in Boroughs v. Joiner, 337 So.2d 340 (Ala.1976). The risk posed by such an activity "`inheres in the performance of the contract and results directly from the work to be done,......
  • Request a trial to view additional results

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