Langan v. Valicopters, Inc.

• Decision Date: 04 August 1977
• Docket Number: No. 44542,44542
• Citation: 567 P.2d 218,88 Wn.2d 855
• Parties: , 10 ERC 1614 Patrick L. LANGAN and Dorothy Langan, his wife, Respondents, v. VALICOPTERS, INC., a Washington Corporation, Appellant, L. E. Haight and Jane Doe Haight, his wife, Defendants, and Simplot Soilbuilders, Robert Thalheimer and Jane Doe Thalheimer, his wife, Robert Lee Thalheimer and Jane Doe Thalheimer, doing business as Thalheimer Farms, and Gene Bepple and Jane Doe Bepple, his wife, Appellants.
• Court: Washington Supreme Court

Page 855

88 Wn.2d 855

567 P.2d 218, 10 ERC 1614

Patrick L. LANGAN and Dorothy Langan, his wife, Respondents, v. VALICOPTERS, INC., a Washington Corporation, Appellant, L. E. Haight and Jane Doe Haight, his wife, Defendants, and Simplot Soilbuilders, Robert Thalheimer and Jane Doe

Thalheimer, his wife, Robert Lee Thalheimer and Jane Doe

Thalheimer, doing business as Thalheimer Farms, and Gene

Bepple and Jane Doe Bepple, his wife, Appellants.

No. 44542.

Supreme Court of Washington, En Banc.

Aug. 4, 1977.

Brooks & Larson, Terry A. Brooks, Yakima, for appellants.

Felthous, Peters, Schmalz & Leadon, P. S., Douglas D. Peters, Selah, for respondents.

DOLLIVER, Associate Justice.

This is an appeal from a judgment against appellants for damages resulting from their crop spraying activities. Patrick and Dorothy Langan, respondents, own a small (21/2 to 3 acre) farm in the Yakima Valley. The Langans are organic farmers: that is, they use no nonorganic fertilizers, insecticides or herbicides to aid them in their farming but rely on natural fertilizers and natural pest control agents. They had planned to can and sell their produce to organic food buyers.

Valicopters, Inc., is a Washington corporation which engages in the aerial application of agricultural pesticides. Gene Bepple, one of the owners of Valicopters, Inc., was the helicopter pilot at the time of the incident giving rise to this lawsuit. The Thalheimers, doing business as Thalheimer Farms, owned and farmed the land adjoining that of the respondents. It was their land that was being sprayed by Valicopters. Simplot Soilbuilders sold the agricultural chemical to Thalheimers for aerial application.

On June 3, 1973, Bepple sprayed for Colorado beetle infestation on the Thalheimer farm with a chemical pesticide known as Thiodan. A small patch of the farm was sprayed with the chemical Guthion. While applying the pesticides to Thalheimers' property, Bepple traveled approximately 45 miles per hour while 6 to 8 feet off the ground with a 42-foot application boom extending from the sides of the helicopter. Patrick Langan testified that, during one spraying pass, the helicopter began spraying while it was over his property. This testimony was disputed. He further testified that the spray settled on the entire length of their tomato, bean, garlic, cucumber and Jerusalem artichoke rows.

The Langans and other organic farmers founded and are members of the Northwest Organic Food Producers' Association (NOFPA). The bylaws of NOFPA contain the following pertinent provisions:

7. No poisonous insecticides, repellents, herbicides, artificial fertilizers, stimulants or hormones may be used on food or in soil in which products are grown or animals are grazed. If any such item is applied by the grower to any committed acreage that has been previously committed and certified, the acreage will be withdrawn from certification and this farmer cannot be recertified without approval of the Executive Committee.

9. No member shall be allowed to market foods or advertise food as certified organically grown by NOFPA if laboratory tests on the finished crop indicates (sic ) the presence of more than ten percent (10%) of the maximum pesticide residue tolerances allowable by the Food and Drug Administration. In the event the finished crop reflects a residue higher than the allowable tolerances set forth in this section, the member's seal for any such crop shall immediately be suspended and public notice made thereof.

NOFPA Bylaws, art. 4, §§ 7, 9.

A laboratory test conducted after the spraying indicated the presence of 1.4 parts per million by weight of Thiodan on the Langans' crop tissue. The United States Department of Health, Education and Welfare, Food and Drug Administration's tolerance for Thiodan on tomatoes and beans is 2.0 parts per million. Following the test results, the Board of Directors of NOFPA revoked the Langans' certification as organic food growers in conformance with bylaw No. 7. The Langans' entire property was decertified in conformance with the NOFPA rule which requires decertification when a portion of the land is contaminated.

Due to the decertification, the Langans did not grow their tomatoes and beans to fruition. Instead, they pulled them from the ground to prevent further contamination of the soil. The Langans had no contract to sell the contaminated tomatoes and beans commercially.

After a jury trial, a judgment in the amount of $5,500 was entered against appellants. They appealed to the Court of Appeals, Division Three. That court certified the case to this court and we accepted certification.

At the outset, it must be determined whether there was substantial evidence to support the jury's finding that respondents' damage occurred as a result of the spraying. Appellants contend that NOFPA erroneously interpreted its own bylaws. They argue that neither rule No. 7 nor rule No. 9 required immediate decertification of appellants' property and that the tomatoes and beans should have been tested for chemicals when those crops had fully matured. The bylaws of that organization are essentially a contract between NOFPA and its members. See Rodruck v. Sand Point Maintenance Comm'n,48 Wash.2d 565, 295 P.2d 714 (1956). In construing a contract, the intention of the parties will be given great, if not controlling, weight. See Kennedy v. Weyerhaeuser Tbr. Co., 54 Wash.2d 766, 344 P.2d 1025 (1959).

A director of NOFPA testified that their interpretation of rule No. 7, coupled with the basic purpose of NOFPA (to insure consumers that the products are organically grown if they are sold under the organization's seal) required decertification of respondents' farm. The Langans apparently agreed with this interpretation and did not question the legitimacy of the decertification. This decertification, which prompted the Langans to pull the crops, provided substantial evidence for the jury to conclude that they suffered damage as a result of crop spraying.

The next issue is whether the trial court erred by instructing the jury that appellants would be strictly liable for damage that was proximately caused by their aerial spraying. The trial judge gave the following instruction:

If you find that defendants' chemicals fell upon plaintiffs' crops, you are instructed that as a matter of law the defendants are liable for such damage to plaintiffs' crops, if any, as you find was proximately caused by defendants' spray application.

Liability for damage caused by crop dusting or spraying generally is imposed on the basis of either negligence or strict liability. See generally Liability for Injury Caused by Spraying or Dusting of Crops, Annot., 37 A.L.R.2d 833 (1971). The courts in most jurisdictions that have held crop dusters liable have used the theory of negligence. See, e. g., Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454 (1948); Hammond Ranch Corp. v. Dodson, 199 Ark. 846, 136 S.W.2d 484 (1940); Miles v. A. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260 (1937); Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973). However, other opinions which have ostensibly relied upon the principles of negligence have been criticized by legal writers because the reasoning is not clear or more nearly resembles strict liability. Comment, Crop Dusting: Two Theories of Liability?, 19 Hastings L.J. 476, 482-89 (1968); Note, Crop Dusting: Legal Problems in a New Industry, 6 Stan.L.Rev. 69, 75-80 (1953).

Three jurisdictions have held crop dusting to be an activity to which the principles of strict liability apply. Young v. Darter, 363 P.2d 829 (Okla.1961); Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312 (1961); Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957) (applying civil law). In Loe v. Lenhardt, supra , Justice Goodwin, writing for the majority, noted that the dangers of spraying agricultural chemicals by aircraft has been the subject of considerable legislative attention nationwide, citing the laws of 29 states. These laws, he concluded, were evidence of the dangerous character of aerial spraying. The court recognized the activity was one capable of inflicting damage notwithstanding the exercise of utmost care by the applicator, and that the damage was within the scope of the risk created by spraying an adjoining field. The court cited Bedell v. Goulter, 199 Or. 344, 362-63, 261 P.2d 842 (1953), a case involving strict liability for blasting, in which it stated:

" * * * Basic to the problem is 'an adjustment of conflicting interests', . . . of the right of the blaster, on the one hand, to pursue a lawful occupation and the right of an owner of land, on the other, to its peaceful enjoyment and possession. Where damage is sustained by the latter through the nonculpable activities of the former, who should bear the loss the man who caused it or a 'third person', as Judge Hand says, 'who has no relation to the explosion, other than that of injury'?"

Loe v. Lenhardt, supra 227 Or. at 253, 362 P.2d at 318.

In Washington, this court has adopted the Restatement (Second) of Torts §§ 519, 520 (Tent.Draft No. 10 1964). Pacific Northwest Bell Tel. Co. v. Port of Seattle, 80 Wash.2d 59, 491 P.2d 1037 (1971); Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972). Section 519 of the Restatement provides:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent such harm.

(2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous.

Section 520 lists the factors to be used when determining what constitutes an abnormally dangerous activity:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;

(b) Whether the gravity of the...