Ernest v. Faler, 57013
| Decision Date | 05 April 1985 |
| Docket Number | No. 57013,57013 |
| Parties | Bill ERNEST, Plaintiff-Appellant, v. Robert D. FALER d/b/a Bob Faler Aerial Spray Service, Defendant-Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A. 2-2457, which requires a person damaged from a pesticide application to file a written statement that he has been damaged with the county attorney within sixty days after the date the damage
was discovered in order to maintain a civil action to recover damages, is unconstitutional as a violation of the due process and the equal protection clauses of the Fourteenth Amendment to the United States Constitution and the Kansas Bill of Rights.
2. One who is engaged in the business of aerial crop-spraying is liable for the results of his negligence, if he fails to take reasonable precautions to avoid injury to others.
3. The right of a person injured by the tortious act of another to a remedy for his injuries in a court of law is one of the basic constitutional rights guaranteed protection by the Kansas courts.
M. Doug Bell of Becker, Hildreth, Eastman, Gossard, Bell and Hassenplug, Coffeyville, argued the cause and was on brief for plaintiff-appellant.
Robert K. Scovel of Scovel, Emert, Heasty & Oakleaf, Independence, argued the cause and was on brief for defendant-appellee.
This is an action to recover damages resulting from alleged negligence in the application of a chemical pesticide by an aerial sprayer, the defendant-appellee, Robert D. Faler, who operates Bob Faler Aerial Spray Service. On June 4, 1982, the defendant sprayed a pesticide on real property adjacent to the property of the plaintiff, Bill Ernest, in Montgomery County. In his petition, plaintiff alleged that some of the chemical spray drifted over to plaintiff's real estate and caused damage to growing walnut trees in an amount in excess of $7500.
Plaintiff, having noticed the damage to his trees, promptly notified the Kansas Secretary of Agriculture, the defendant as pesticide applicator, and the adjoining landowner. The Kansas Department of Agriculture examined the property and took soil samples. The department's report, which was filed on June 10, 1982, showed that the chemical 2, 4-D, a pesticide, was present on plaintiff's trees. On November 1, 1983, the plaintiff filed an action against defendant to recover damages for negligent spraying.
The defendant filed a motion for summary judgment based upon the failure of the plaintiff to comply with the provisions of K.S.A. 2-2457, which provides as follows:
The district court sustained defendant's motion for summary judgment on the basis that plaintiff had failed to comply with K.S.A. 2-2457 by neglecting to file with the county attorney the written statement of damages on a form prescribed by the office of the secretary of agriculture. The trial court held that the notice required by K.S.A. 2-2457 was a condition precedent to the filing of an action for recovery of damages for negligence against a sprayer of pesticides, and that, although plaintiff had notified the secretary of agriculture, the sprayer, and also the adjacent landowner within the sixty-day period, that was not a sufficient compliance to satisfy the statute. In entering summary judgment, the trial court stated for the record that it felt the result was extremely unfair and that it hoped the summary judgment would be reversed on appeal. Specifically, the trial court indicated that the application of the statute had the effect of taking a property right away from plaintiff without giving him the opportunity to have his day in court. The plaintiff then appealed, and the appeal was transferred to the Supreme Court.
On appeal, plaintiff contends that he had substantially complied with K.S.A. 2-2457 by giving notice to the secretary of agriculture, the pesticide applicator, and the owner of the adjacent property within the sixty-day period and, further, that the defendant by its actions had waived notice to the county attorney and was estopped from setting up the defense of the statute. Plaintiff further maintains that the trial court erred in ruling that K.S.A. 2-2457 does not violate the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution and the Kansas Bill of Rights.
In view of the importance of the constitutional issues raised, we will determine this case on the point raised by the plaintiff that the provisions of K.S.A. 2-2457 are void and unenforceable as a violation of the due process and the equal protection clauses of the United States and Kansas Constitutions. In determining this issue, it would be helpful at the outset to consider some of the basic principles of law applicable in this area and also to bring into sharper focus the Kansas Pesticide Law (K.S.A. 2-2438a et seq.).
The legal responsibility of one who engages in the business of aerial crop-spraying was determined in Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973), where we held that one who is engaged in the business of aerial crop-spraying has an obligation to use reasonable care to prevent injury to others. Reasonable precautions required vary with the hazards of the business; the greater the risk, the more imperative the obligation. There is a comprehensive annotation on the subject of liability for injury caused by spraying or dusting of crops at 37 A.L.R.3d 833. The annotation points out that after World War II there was a significant growth in the crop-dusting industry and that crop-dusting today has become a most valuable weapon in the farmer's arsenal against crop-killing pests. The problem, however, has been that the same chemicals which have destroyed the weeds or insects of a landowner frequently have been deadly to the crops of his neighbors. Furthermore, it is extremely difficult, if not altogether impossible, to prevent aerially applied chemicals from drifting onto neighboring land because of the atmospheric forces, the minute size of the dust or spray particles, and the air disturbances created by the aircraft itself. Some of the courts have adopted the view that crop-dusting is so inherently and intrinsically dangerous as to make the owner of property who hires a sprayer liable for the sprayer's negligence. Other courts have adopted the position that the person who applies the spray or dust to the crops may be liable for resulting damages on a theory of negligence, trespass, or strict liability. There are many cases cited in the annotation illustrating the application of these various theories. As noted above, in Binder this court applied the rule that an aerial sprayer of crops is liable for negligence, if he fails to take reasonable precautions to avoid injuries to others.
In the late 1940s and early 1950s, there developed a great national interest in the area of environmental protection. The question of insecticide use became a matter of great interest to the President, the Congress, and the states. Many state statutes were enacted governing the spraying and application of pesticides, herbicides, and insecticides. In 1953, Kansas enacted the Termite and Pest Control Act (G.S.1949, 2-2401 et seq. [1953 Supp.]. Subsequently as amended, this became the Pest Control Act (K.S.A. 2-2401 et seq. [Weeks]. This act provided for the licensing and regulation of pest control operators by the adoption of rules and regulations by the Kansas Board of Agriculture, including provisions for the suspension and renewal of licenses, and the controlled use of pest control chemicals. The Pest Control Act was supplemented by the 1970 enactment of the Pesticide Use Law, K.S.A. 2-2413 et seq. (Weeks). K.S.A. 2-2424 (Weeks) provided that in a criminal action, a person damaged from pesticide application shall file with the county attorney a written statement claiming that he or she has been damaged, on a form prescribed and provided by the secretary of agriculture, within sixty days after the date the damage occurred, or prior to the time that 25% of a damaged crop shall have been harvested. The county attorney, upon receipt of this statement, was required to notify the licensee and the owner or lessee of the land or other person who may be charged with the responsibility and furnish copies of the statement. It is important to note that the sixty-day notice provision applied only in a criminal action and had no application to civil actions.
During the middle 1970s, various federal regulations in the area of pesticides were promulgated, and statutory revisions were adopted in many states. A new Kansas pesticide law was enacted in 1976. The new statute was similar to the former statute and...
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