Loe v. Lenhardt

CourtSupreme Court of Oregon
Writing for the CourtBefore McALLISTER; GOODWIN; PERRY
Citation227 Or. 242,362 P.2d 312
Decision Date17 May 1961
PartiesOscar H. LOE and Marie A. Loe, Appellants, v. Jack LENHARDT and Clemens J. Schnider, Respondents. *

Page 312

362 P.2d 312
227 Or. 242
Oscar H. LOE and Marie A. Loe, Appellants,
v.
Jack LENHARDT and Clemens J. Schnider, Respondents.
*
Supreme Court of Oregon, Department 1.
Argued and Submitted March 8, 1961.
Decided May 17, 1961.

Page 313

[227 Or. 244] Paul M. Reeder, Hillsboro, argued the cause and filed briefs for appellants.

Asa Lewelling, Salem, argued the cause for respondent Lenhardt. On the brief were Lewelling & Gies, Salem.

J. Ray Rhoten, Salem, argued the cause for respondent Schnider. On the brief were Rhoten, Rhoten & Speerstra, Salem.

Before McALLISTER, C.J., and ROSSMAN, PERRY, GOODWIN, and LUSK, JJ.

Page 314

GOODWIN, Justice.

The plaintiffs, who raise seed crops on their farm near Silverton, appeal from judgments entered in favor of two defendants in an action of trespass for crop damage resulting from the spraying of chemicals by airplane.

The defendant Lenhardt operated the aircraft which applied the chemicals. The defendant Schnider owned the lands adjacent to the plaintiffs' farm and hired the services of Lenhardt. Upon the conclusion of the plaintiffs' case, Schnider moved for and was granted a judgment of involuntary nonsuit. Upon the conclusion of all the evidence, Lenhardt moved for and was granted a directed verdict.

The record reveals sufficient evidence from which a jury could have found that a defoliant sprayed from Lenhardt's plane drifted onto the land and crops of the plaintiffs and thereby inflicted some damage. The amount of that damage is immaterial for the purposes of this appeal.

Under Martin v. Reynolds Metals Co., 221 Or. 86, [227 Or. 245] 342 P.2d 790, certiorari denied 362 U.S. 918, 80 S.Ct. 672, 4 L.Ed.2d 739, the causing of chemicals to settle upon the crops of the plaintiffs was a trespassory invasion of their rights. Since harm resulted, the invasion can not be described as merely technical. See Martin v. Reynolds Metals Co., supra, 221 Or. at page 95, 342 P.2d at page 794.

The plaintiffs in the case at bar alleged that the damage was done 'casually and involuntarily', under ORS 105.815 (a timbertrespass statute). A demurrer was overruled and the defendants answered by general denials and separate affirmative defenses. The attempt to recover double damages under ORS 105.815 appears to have been abandoned during the trial. The plaintiff proceeded on the theory that both defendants were liable for an accidental trespass. The defendant Schnider alleged that any damage done was the sole responsibility of Lenhardt as an independent contractor. The defendant Lenhardt alleged that he was a 'custom applicator' within the meaning of ORS ch. 573, and that the plaintiffs were barred by their failure to comply with certain provisions of the code which will be considered hereafter.

The trial court held that Lenhardt, the custom applicator, was an independent contractor. The court then concluded that Schnider, as a landowner, was not liable to the plaintiffs for damages caused by chemicals sprayed from Lenhardt's plane. The record, which we will not recite here, fully supports the conclusion that Lenhardt was an independent contractor.

On the issues thus made up we have for decision the question whether an unintentional trespass causing crop damage imposes liability upon the perpetrators of the damage without a pleading or proof of fault upon their part. Specifically, upon what theory, if any, is one liable for the miscarriage of aerial spraying[227 Or. 246] activity, and what effect, if any, is to be given the relationship between the defendant independent contractor and the defendant landowner? The case is one of first impression in this court.

Damage from crop dusting has been a fruitful source of litigation elsewhere. See Crop Dusting: Legal Problems in a New Industry, 6 Stanford L.Rev. 69; Note, 43 Minn.L.Rev. 531; and Note, 32 Tulane L. Rev. 146. It will be found from an examination of the cases collected in the notes cited that liability frequently has been imposed on the basis of fault, either a finding of lack of due care in spraying or a finding that the activity was unreasonable at the time and place. In some cases, it is difficult to detect what theory the court was following. Only in Louisiana, where the court was applying civil-law principles, have we found a direct holding for the plaintiff without a pleading or proof of negligence. Gotreaux v. Gary, 232 La. 373, 94 So.2d 293. We have found no case in which an intentional trespass was a material issue. We have likewise found no case which discussed the theory of unintentional trespass under the rule found in Restatement,

Page 315

1 Torts 390, § 165, although a number of the case imposing liability after a finding of negligence might well have fallen within the Restatement formula:

'One who recklessly or negligently, or as a result of an extra hazardous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor thereof or to a thing or a third person in whose security the possessor has a legally protected interest.'

See, e. g., Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231; Burke v. Thomas, Okl.1957, 313 P.2d 1082; [227 Or. 247] Alexander et al. v. Seaboard Air Line R. Co., 221 S.C. 477, 71 S.E.2d 299; Heeb v. Prysock et al., 219 Ark. 899, 245 S.W.2d 577; Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289.

The plaintiff tried the case on the theory that the activity being conducted over Schnider's land was an inherently dangerous activity within the rule found in Chapter 15, Restatement, 2 Torts 1099, §§ 416, 426, and 427, that one who employs a contractor to carry on such an activity cannot thereby insulate himself from liability. While Restatement, 2 Torts 1147, § 427, is limited in its present form to cases involving 'bodily harm', a number of cases have applied the principle stated therein to property damage where negligence was shown. Typical airplane spraying cases which have applied the nondelegability rule are McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138 (insecticide); Heeb v. Prysock et al., 219 Ark. 899, 245 S.W.2d 577, supra (herbicide); and S. A. Gerrard Co., Inc. v. Fricker, 42 Ariz. 503, 27 P.2d 678 (insecticide).

The authorities are practically uniform in holding that crop dusting is an activity sufficiently freighted with danger to impose liability upon the landowner having the work done if negligence is proven, even though the fault, if any, is that of an independent contractor. See cases cited in 2 Harper and James, The Law of Torts (1956) 868, and Annotation, 12 A.L.R.2d 436. However, with one exception, each of the cases we have examined found sufficient evidence of negligence on the part of the person applying the chemicals to support a verdict based upon negligence. The exception was Chapman Chemical Co. v. Taylor et al., 215 Ark. 630, 222 S.W.2d 820, which exonerated the applicator as free from negligence but held the manufacturer of the chemical liable on the basis of strict [227 Or. 248] liability. This decision does not appear to have been widely followed, but is sometimes cited as a case based on strict liability. Prosser, Torts (2d Ed., 1955) 334. It is more frequently cited as a case of 'product liability'. See Annotation, 12 A.L.R.2d 438, 442.

The foregoing discussion of 'inherently-dangerous activity' in negligence cases, however, is instructive only in a secondary way in the case at bar. The plaintiffs have not sought to prove negligence, but seek to impose liability upon the basis of damage flowing from an 'innocent' trespass.

A trespass, once established, carries with it liability for resulting harm. Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790, supra. The plaintiff here seeks to establish a trespass and a remedy therefor whether the trespass had its origin in conduct that was intentional, careless, or indeed innocent but fraught with a high degree of danger.

It is true that at common law every unauthorized entry upon the soil of another was a trespass. Prosser, Torts (2d Ed., 1955) 54. But the Restatement of Torts takes the position that liability will be imposed in the case of an unintentional intrusion only when it arises out of negligence or the carrying on of an extra hazardous activity. Restatement, 1 Torts 359, § 158, and 390, § 165. The rationale of the Restatement in limiting liability for unintended invasions of land to actual damages flowing from negligent or extra hazardous conduct commends itself to this court and is

Page 316

consistent with our own cases on related problems. See Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790, supra, where the trespass was intentional; Bedell et ux. v. Goulter et al., 199 Or. 344, 261 P.2d 842, where the unintended invasion of the plaintiffs' land was caused by shock waves from [227 Or. 249] blasting; and Gronn v. Rogers Construction, Inc., 221 Or. 226, 350 P.2d 1086, where the plaintiff sought to recover for the loss of baby mink and was denied recovery because the loss complained of was not within the scope of the risk involved in the use of dynamite by a highway crew.

If an activity is extra hazardous, the resulting harm produces liability in those states which follow the Restatement of Torts, whether the invasion of the legally protected interest is a trespass, Restatement § 165, private nuisance, § 822, or any other compensable injury caused by 'ultrahazardous' activity, § 519.

The defendants urge that the spraying of the defoliant used in this case is not even an 'inherently dangerous' activity under the law of negligence, much less such a hazardous enterprise as to come within the trespass rule of the Restatement of Torts, § 165. The evidence was in conflict whether the formula used, one quart of dinitro general in ten gallons of diesel oil, constituted an...

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62 practice notes
  • Schuck v. Beck, 37213-8-III
    • United States
    • Court of Appeals of Washington
    • October 19, 2021
    ...the explosion, other than that of injury'?" Langan v. Valicopters, Inc., 88 Wn.2d 855, 860, 567 P.2d 218 (1977) (quoting Loe v. Lenhardt, 227 Or. 242, 253, 362 P.2d 312 (1961)). Unfortunately interesting appeals often arise from tragedy. This appeal asks whether the trial court properly gra......
  • Brown v. Portland School Dist. No. 1
    • United States
    • Supreme Court of Oregon
    • May 27, 1981
    ...notice provisions of mechanic's lien statute); Cross et ux. v. Harris, 230 Or. 398, 370 P.2d 703 (1962) and Loe et ux. v. Lenhard et al., 227 Or. 242, 362 P.2d 312 (1961) (both involving notice provisions of statute providing liability for aerial crop spraying damages); Sprague v. Astoria, ......
  • Commonwealth Edison Co v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • November 20, 2001
    ...private nuisance, is subject to liability for harm resulting to others from such . . . nuisance. Id. at 427B. See, e.g., Loe v. Lenhardt, 362 P.2d 312, 318 (Or. 1961) (spraying of chemicals by independent contractor).30 So too, the utilities could reasonably have anticipated potential stric......
  • Johnson v. Star Machinery Co.
    • United States
    • Supreme Court of Oregon
    • December 19, 1974
    ...Martin et ux. v. Reynolds Metals Co., 221 Or. 86, 102, 342 P.2d 790 (1960), or the chemical spraying cases, Loe et ux. v. Lenhard et al., 227 Or. 242, 254, 362 P.2d 312 (3) Escape of stored water. Brown, Adm'x v. Gessler et al., 191 Or. 503, 512--513, 230 P.2d 541 (1951); (4) Keeping of ani......
  • Request a trial to view additional results
62 cases
  • Schuck v. Beck, 37213-8-III
    • United States
    • Court of Appeals of Washington
    • October 19, 2021
    ...the explosion, other than that of injury'?" Langan v. Valicopters, Inc., 88 Wn.2d 855, 860, 567 P.2d 218 (1977) (quoting Loe v. Lenhardt, 227 Or. 242, 253, 362 P.2d 312 (1961)). Unfortunately interesting appeals often arise from tragedy. This appeal asks whether the trial court properly gra......
  • Brown v. Portland School Dist. No. 1
    • United States
    • Supreme Court of Oregon
    • May 27, 1981
    ...notice provisions of mechanic's lien statute); Cross et ux. v. Harris, 230 Or. 398, 370 P.2d 703 (1962) and Loe et ux. v. Lenhard et al., 227 Or. 242, 362 P.2d 312 (1961) (both involving notice provisions of statute providing liability for aerial crop spraying damages); Sprague v. Astoria, ......
  • Commonwealth Edison Co v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • November 20, 2001
    ...private nuisance, is subject to liability for harm resulting to others from such . . . nuisance. Id. at 427B. See, e.g., Loe v. Lenhardt, 362 P.2d 312, 318 (Or. 1961) (spraying of chemicals by independent contractor).30 So too, the utilities could reasonably have anticipated potential stric......
  • Johnson v. Star Machinery Co.
    • United States
    • Supreme Court of Oregon
    • December 19, 1974
    ...Martin et ux. v. Reynolds Metals Co., 221 Or. 86, 102, 342 P.2d 790 (1960), or the chemical spraying cases, Loe et ux. v. Lenhard et al., 227 Or. 242, 254, 362 P.2d 312 (3) Escape of stored water. Brown, Adm'x v. Gessler et al., 191 Or. 503, 512--513, 230 P.2d 541 (1951); (4) Keeping of ani......
  • Request a trial to view additional results

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