Pride of San Juan, Inc. v. Pratt, No. 1 CA-CV 07-0820.

• Court: Court of Appeals of Arizona
• Writing for the Court: Norris
• Citation: 212 P.3d 29,221 Ariz. 337
• Docket Number: No. 1 CA-CV 07-0820.
• Decision Date: 29 January 2009
• Parties: PRIDE OF SAN JUAN, INC., a California corporation, Plaintiff/Appellee, v. Loren PRATT d/b/a Loren Pratt Farms, Defendant/Appellant.

212 P.3d 29 221 Ariz. 337 PRIDE OF SAN JUAN, INC., a California corporation, Plaintiff/Appellee,
v.
Loren PRATT d/b/a Loren Pratt Farms, Defendant/Appellant. No. 1 CA-CV 07-0820. Court of Appeals of Arizona, Division 1, Department E. January 29, 2009.

[212 P.3d 30]

Clark & Associates By A. James Clark, Yuma, Attorneys for Plaintiff/Appellee.

Jennings Strouss & Salmon, PLC By Michael J. O'Connor and John J. Egbert, Phoenix, Attorneys for Defendant/Appellant.

OPINION

NORRIS, Judge.

¶ 1 The issue in this appeal is whether the application of pesticides from an airplane — "crop dusting" — is still an inherently dangerous activity in light of technological advances after this issue was first addressed by our supreme court in 1933. We hold, under the facts of this case, that crop dusting is still an inherently dangerous activity.

FACTS AND PROCEDURAL HISTORY

¶ 2 Loren Pratt, doing business as Loren Pratt Farms ("Pratt"), planted a 15-acre field of broccoli in Wellton, Arizona, in 2003. On an adjacent field, Pride of San Juan, Inc. ("San Juan"), owned mixed vegetable crops. Pratt hired a licensed pest control advisor, Sunland Chemical Company, Inc. ("Sunland"), as an independent contractor to inspect Pratt's broccoli crop and to recommend pesticides. The pesticides Sunland recommended for use on Pratt's broccoli field were not registered with the federal government for use on San Juan's vegetable crops. Sunland arranged for an aerial pesticide application company, Tri-Rotor AG Services, Inc. ("Tri-Rotor"), to crop dust Pratt's broccoli field. Tri-Rotor dusted Pratt's field with the recommended pesticides in December 2003 and January 2004. San Juan subsequently discovered the pesticides aerially applied to Pratt's field had contaminated its crops and rendered them unmarketable.

¶ 3 The Arizona Department of Agriculture ("ADA") confirmed the contamination of San Juan's crops and concluded Tri-Rotor's pilot had violated Arizona Administrative Code ("A.A.C.") R3-3-301(D), which provides: "[a] person shall not allow drift that causes any unreasonable adverse effect." The ADA issued a criminal citation to the pilot as a result.

¶ 4 San Juan sued Pratt, Sunland and Tri-Rotor for negligence. San Juan alleged Pratt was liable for its own negligence and vicariously liable for Tri-Rotor's negligence in applying the pesticides. By stipulation, the court dismissed San Juan's claims against Sunland with prejudice and entered a $450,000 judgment against Tri-Rotor.

¶ 5 Pratt moved for summary judgment on San Juan's claim that Pratt was vicariously liable for Tri-Rotor's negligence. Pratt argued it was not liable for Tri-Rotor's negligence

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because, due to technological advances in the aerial application of pesticides, crop dusting was no longer an inherently dangerous activity. Accordingly, Pratt asserted the superior court was not required by S.A. Gerrard Co., Inc. v. Fricker, 42 Ariz. 503, 27 P.2d 678 (1933), to find that the crop dusting performed by Tri-Rotor was an inherently dangerous activity. In S.A. Gerrard, our supreme court held that because of the "very great likelihood of the poisonous dust or spray spreading to adjoining" property, a landowner was vicariously liable for the negligence of its independent contractor-crop duster. Id. at 507, 27 P.2d at 680. Viewing S.A. Gerrard as controlling under the principle of stare decisis, the superior court held that crop dusting was inherently dangerous as a matter of law and denied Pratt's motion for summary judgment.

¶ 6 San Juan then moved for entry of judgment against Pratt on the basis of the court's application of S.A. Gerrard and the parties' stipulation that only Tri-Rotor was at fault for San Juan's damages and Pratt's liability, if any, was based on its vicarious liability for Tri-Rotor's fault under S.A. Gerrard. Pratt did not object to San Juan's motion, although it reserved its appeal right. Essentially treating San Juan's motion as one for summary judgment, the superior court entered judgment for San Juan, ruling as a matter of law that Pratt was vicariously liable for Tri-Rotor's fault under the "binding precedent" of S.A. Gerrard.

¶ 7 Pratt timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) and — 2101(B) (2003).

DISCUSSION¹

¶ 8 In Arizona, an employer is not ordinarily liable for the negligent acts of its independent contractors. Ft. Lowell-NSS Ltd. P'ship v. Kelly, 166 Ariz. 96, 101, 800 P.2d 962, 967 (1990); E.L. Jones Constr. Co. v. Noland, 105 Ariz. 446, 454, 466 P.2d 740, 748 (1970); Miller v. Westcor Ltd. P'ship, 171 Ariz. 387, 390-91, 831 P.2d 386, 389-90 (App.1991). The reason for this rule is that because an employer lacks control over an independent contractor's work, the independent contractor is the "proper party to be charged with the responsibility of preventing the risk, administering it, and distributing it." Ft. Lowell, 166 Ariz. at 100, 800 P.2d at 966 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 509 (5th Ed.1984)).

¶ 9 There are several exceptions to this general rule, however. Id. at 101, 800 P.2d at 967 ("[M]any exceptions to the rule of nonliability have now been recognized so that even where the employer has not been personally negligent, he may be vicariously liable for the contractor's negligence."). One such exception is when an independent contractor is hired to perform an "inherently dangerous" activity. See Miller, 171 Ariz. at 391, 831 P.2d at 390; Bible v. First Nat'l Bank of Rawlins, 21 Ariz.App. 54, 57, 515 P.2d 351, 354 (1973); Restatement (Second) of Torts § 427 (1965). Our supreme court applied this exception in S.A. Gerrard. 42 Ariz. at 507, 27 P.2d at 680.

¶ 10 S.A. Gerrard involved an independent contractor-crop duster who negligently allowed pesticides to fall on and damage a neighbor's property. Id. at 505, 27 P.2d at 679. In addressing the defendant-employer's liability for the independent contractor-crop duster's negligence, the court first explained the general rule in Arizona that an employer is not ordinarily liable for the negligence of its independent contractors. Id. at 506, 27 P.2d at 680. Then, the court explained the exception to this rule for "inherently dangerous" activities:

One ... exception[] is that the law will not allow one who has a piece of work to be

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done that is necessarily or inherently dangerous to escape liability to persons or property negligently injured in its performance by another to whom he has contracted such work. This is especially true where the agency or means employed to do the work, if not confined and carefully guarded, is liable to invade adjacent property, or the property of others, and destroy or damage it.

Id. at 507, 27 P.2d at 680. Applying this exception to the particular facts before it, the court held: "because of the very great likelihood of the poisonous dust or spray spreading to adjoining or nearby premises and damaging or destroying valuable property thereon, [the employer] could not delegate this work to an independent contractor and thus avoid liability." Id.

¶ 11 Arizona courts have subsequently cited S.A. Gerrard with approval for the proposition that employers can be vicariously liable for the negligence of independent contractors hired to perform inherently dangerous activities. See Miller, 171 Ariz. at 391, 831 P.2d at 390; Bible, 21 Ariz.App. at 57, 515 P.2d at 354. An activity is considered inherently dangerous based on two factors: (1) if the risk of harm cannot be eliminated through the exercise of reasonable care; and (2) if the risk is to the person, land or chattels of another. Ft. Lowell, 166 Ariz. at 105, 800 P.2d at 971; Miller, 171 Ariz. at 391, 831 P.2d at 390; Bible, 21 Ariz.App....