Hagen v. Dow Chemical Co.

Decision Date16 December 1993
Docket NumberNo. 93-011,93-011
Citation261 Mont. 487,863 P.2d 413
Parties, Prod.Liab.Rep. (CCH) P 13,804 Harold and Mary HAGEN, d/b/a Hagen Western Fisheries, Plaintiffs and Appellants, v. DOW CHEMICAL COMPANY and Madison County Weed Management District, a political subdivision of the State of Montana, Defendants and Respondents.
CourtMontana Supreme Court

Gig A. Tollefsen, Berg, Lilly, Andriolo, & Tollefsen, Bozeman, for plaintiffs and appellants.

Robert M. Carlson, Corette, Pohlman, Allen, Black & Carlson, Butte, for Dow Chemical.

James T. Harrison, Jr., and James C. Cumming, Harrison, Loendorf & Poston, Helena, for Madison County Weed Dist.

TRIEWEILER, Justice.

Harold and Mary Hagen filed suit in the District Court for the Fifth Judicial District in Madison County, to recover damages sustained when over 8000 pounds of fish died subsequent to the Madison County Weed Management District's application of a weed poison adjacent to the ditch which supplied water to the Hagens' fish farm. The Hagens appeal from the District Court's order granting summary judgment in favor of the Weed District and Dow We reverse.

                Chemical Company.   The District Court concluded that the Hagens failed to submit sufficient evidence to establish that exposure to the weed poison caused the death of the fish
                

The following issues are presented:

1. Did the court err when it granted summary judgment in favor of the defendants on the basis that, as a matter of law, there were no genuine issues of material fact regarding the cause of plaintiffs' damages?

2. Did the court err when it granted summary judgment in favor of Dow Chemical on the claim for punitive damages on the basis that there were no issues of material fact regarding actual fraud or malice on the part of Dow?

On July 12 and July 20, 1989, the Madison County Weed Management District sprayed a mixture of Tordon 22K, manufactured by Dow Chemical, and 2,4-D adjacent to the ditch which was the water supply of the Hagens' fish farm near Sheridan, Montana. On the afternoon of July 21, 1989, a heavy rain washed some of this weed poison into the ditch and ultimately into the tanks at the Hagens' fish farm. Within hours of the rainstorm, more than 8000 pounds of rainbow trout had died. During the next few weeks, more of the fish turned black, lost their mucous tissue, became blind, and eventually died.

The Montana Department of Agriculture was requested to investigate this unexplained fish kill. After performing autopsies on some of the fish and analyzing soil and vegetation samples, the Department concluded that the fish had been exposed to the weed poison, and cited the Weed District for violating Montana's pesticide application law. Although the Department did not find conclusive evidence that the fish were killed due to toxicity from 2,4-D and picloram (the active ingredient of Tordon), it did not rule out the possibility that mortality was caused by sublethal levels of the weed poison acting in combination with other stresses. The autopsies performed by the Department revealed no signs of disease in the dead fish.

Harold Hagen investigated to determine whether such things as improper tank maintenance, disease, or lack of oxygen had caused the fish kill. He also conducted tests in which fish were exposed to the same mixture of weed poison that had been applied by the Weed District. He observed that the test fish exhibited similar symptoms prior to death as did the trout at the fish farm, and based on his evaluation of conditions at the fish farm, concluded that the only probable cause of this incident was exposure to lethal levels of the weed poison. He also hired an independent aquatic testing laboratory, Keeton Fisheries Consultants, to conduct further tests to evaluate the effect of the weed poison on trout. Based on its observations of lethal levels of picloram over different periods of exposure, Keeton Fisheries recommended that Tordon not be used where it could contaminate fish culture facilities.

On April 18, 1990, the Hagens filed suit in District Court to recover damages, alleging that all of their fish stock (in excess of 15,000 pounds) were either killed or rendered unsuitable for commercial use. The Hagens claimed that the cause of the damage to their fish was the herbicide mixture which washed into the water source for their fish farm after a heavy rainstorm on July 21, 1989.

Pursuant to § 7-22-2111, MCA, the Hagens alleged that the Weed District acted with gross negligence when it applied the weed poison in an area that was a "no spray" zone and allowed it to enter the Hagens' water supply. The Hagens sued Dow Chemical Corporation for negligence in representing that the weed poison was not dangerous to fish and could be applied in the manner that it was applied by the Weed District. They also sued Dow under a theory of product liability for failure to warn, and for punitive damages pursuant to § 27-1-221, MCA, based upon the allegation that it willfully disregarded the high probability of substantial injury to fish and human populations.

Both defendants moved for summary judgment, and the Hagens followed with a motion for summary judgment against the Weed District. After a hearing on October 13, 1992, the court issued its order and memorandum in which it granted the defendants' motions for summary judgment on the ground that the evidence presented was not sufficient to allow a jury to find that the weed poison caused the damage to the fish. It also granted summary judgment in favor of Dow on the claim for punitive damages on the ground that the Hagens failed to submit proof of actual fraud or malice by Dow. From this order, the Hagens appeal.

STANDARD OF REVIEW

Summary judgment is an extreme remedy which should not be granted when there is any genuine issue of material fact; the procedure should never be substituted for trial if a material factual controversy exists. Rule 56(c), M.R.Civ.P.; Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 509; Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896.

The party seeking summary judgment has the burden of demonstrating a complete absence of any genuine factual issues. D'Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. In light of the pleadings and the evidence before the court, there must be no material issue of fact remaining which would entitle the nonmoving party to recover. Marriage of Hoyt (1985), 215 Mont. 449, 454, 698 P.2d 418, 421. The party opposing summary judgment must present material and substantial evidence, rather than merely conclusory or speculative statements, to raise a genuine issue of material fact. B.M. by Berger v. State (1985), 215 Mont. 175, 179, 698 P.2d 399, 401.

This Court reviews an order for summary judgment by utilizing the same criteria used by a district court initially under Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 849 P.2d 212, 214. Furthermore, on review, all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party opposing summary judgment. Cereck, 637 P.2d at 511.

I.

Did the court err when it granted summary judgment in favor of the defendants on the basis that there were no genuine issues of material fact regarding the cause of plaintiffs' damages?

It is well established that issues of negligence are generally not susceptible to summary judgment and are better determined at trial. Brohman v. State (1988), 230 Mont. 198, 749 P.2d 67. However, this Court has made clear that summary judgment is proper if a plaintiff fails to submit evidence which would establish an element material to his negligence action. U.S. Fidelity & Guaranty Co. v. Camp (1992), 253 Mont. 64, 831 P.2d 586; Dvorak v. Matador Service, Inc. (1986), 223 Mont. 98, 727 P.2d 1306.

In this instance, the District Court determined that the Hagens failed to establish liability for negligent conduct on the part of either the Weed District or Dow Chemical because the Hagens "failed to prove that the fish death was caused by any defect in Dow's product or any actions or inactions of Dow or Madison County." The court concluded that there was not sufficient evidence in the record to raise an issue of fact on the question of causation, and therefore, ruled that plaintiffs could not maintain an action for strict liability or negligence.

Dow Chemical and the Weed District assert that the court was correct in reaching this conclusion because the Hagens offered no admissible expert opinion testimony that the weed poison definitively caused or contributed to the death of the fish. Dow contends that expert testimony regarding causation is crucial and since the Hagens' experts could only speculate on the issue of causation, summary judgment was proper. Dow contends that the Hagens failed to meet their burden of proof regarding causation because their case was based only on circumstantial evidence. In contrast, Dow offered the direct testimony of an expert who claimed that the cause of death was not its product Tordon, but rather was due to reduced oxygen availability caused by the obstruction of water flow in the tanks at the fish farm.

The Weed District also contends that the Hagens failed to establish a cause of action under § 7-22-2111, MCA, because there is no evidence in the record of a willful act on the part of the Weed District which could constitute gross negligence. The Weed District asserts that there is no proof that it sprayed in the area of the ditch, in 1989 or previously, knowing it to be a "no spray" zone. Nor is there any factual evidence that the Weed District was ever put on notice of the Hagens' concern about spraying in the vicinity of the fish farm, or of other incidents of fish kills that the Hagens now claim occurred subsequent to the application of herbicides in previous years.

It is clear from the...

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