Rayner v. Stauffer Chemical Co.

• Citation: 120 Ariz. 328,585 P.2d 1240
• Decision Date: 22 June 1978
• Docket Number: CA-CIV,No. 1,1
• Parties: Jack M. RAYNER and Fay Rayner, his wife, and Jack M. Rayner, Jr., Appellants, v. STAUFFER CHEMICAL COMPANY, and Chemical Distributors d/b/a Arizona Agrochemical Company, Appellees. 3588.
• Court: Court of Appeals of Arizona

Page 1240

585 P.2d 1240

120 Ariz. 328

Jack M. RAYNER and Fay Rayner, his wife, and Jack M. Rayner, Jr., Appellants, v. STAUFFER CHEMICAL COMPANY, and Chemical Distributors d/b/a Arizona Agrochemical Company, Appellees.

No. 1 CA-CIV 3588.

Court of Appeals of Arizona, Division 1, Department C.

June 22, 1978.

Rehearing Denied Aug. 15, 1978.

Review Denied Sept. 19, 1978.

Fennemore, Craig, von Ammon & Udall by Calvin H. Udall, Frederick G. Gamble, Phoenix, for appellants

Evans, Kitchel & Jenckes, P.C. by Newman R. Porter, Amy R. Coy, Phoenix, for appellee Stauffer Chemical Co.

Gust, Rosenfeld, Divelbess & Henderson by James M. Koontz, Phoenix, for appellee Chemical Distributors.

OPINION

SCHROEDER, Presiding Judge.

Appellants, Jack M. Rayner and his wife and son, ranchers, brought this action to recover damages for the destruction of their 1972 and 1973 potato crops. Their complaint, sounding in negligence, strict liability in tort, and breach of an express warranty, alleged that the damages had been caused by Eptam, a herbicide manufactured by appellee, Stauffer Chemical Company, and sold by appellee Chemical Distributors. ¹ Appellants' case was tried before a jury which returned a verdict in favor of the appellees on all three theories of liability.

On appeal, appellants recognize that the jury, in finding for the appellees on all counts, must have found that Eptam had not caused the damage to appellants' potatoes. Appellants, however, assert that the jury's verdict in favor of the appellees was based on inadmissible evidence. They contend that the trial court erred in admitting both the testimony of the appellees' expert witnesses and the results of tests conducted or supervised by these witnesses which showed that Eptam had never injured potato tubers. Before addressing directly the legal issues, we review in some detail the nature of the evidence presented by the parties.

Appellants' ranch is located near Litchfield Park, Arizona. In March, 1972, Jack Rayner planted potatoes on 60 acres of land. Before planting the potatoes, Rayner gave the land a deep, pre-plant irrigation and in order to control soil insects, treated the land with Telone, an insecticide manufactured by Dow Chemical Company. Rayner also planted an additional eleven rows on land which had not received the pre-plant irrigation or the Telone treatment. Before the potato plants emerged from the soil, Rayner applied Eptam to the entire potato crop. Shortly thereafter, he thoroughly irrigated the eleven rows because they had not received the heavy, pre-plant irrigation. During the trial, appellants presented evidence showing that the heavy irrigation given to these eleven rows after they had already been treated with Eptam may have caused the Eptam to leach or drain below the root zones of the potato plants and weeds.

As the potato plants began to grow above ground and to produce potato tubers underground, Rayner noted that except for the plants in the eleven rows, the potato plants began to develop in an abnormal fashion. Rayner testified that the plant leaves appeared small, stiff, upright, and yellow and that the underground tubers, although appearing normal on the outside, were brown and "corky-looking" on the inside.

These symptoms were also observed by Thomas Clemens, an employee of Stauffer Chemical Company. Clements testified that the plants growing in the 60 acres appeared to be wilted and yellow, but that the plants in the eleven rows seemed to be in a much better condition. In fact, Clements observed the presence of weeds in the eleven rows which should have been killed by Eptam.

At Rayner's request, Ivan D. Shields, Ph.D., a Maricopa County Agricultural Agent and a specialist in plant pathology, also visited the ranch and examined the potato crop. Dr. Shields testified that the potato plants were stunted in growth and were various shades of green. Many of the potato tubers had dry corky spots, which he termed lesions. Although he could not determine the cause of the lesions, he concluded from the pattern of these injuries that they had been caused by a man-made substance as distinguished from a plant disease or virus. As a result of his observations, he advised Rayner to attempt to isolate the chemicals he had used on his crop in his next year's potato planting.

In early 1973, Rayner again prepared several acres on his farm for the planting of potatoes. At this time, he believed that Telone had caused the lesions which had damaged his 1972 potato crop. ² He applied Telone and Eptam to approximately 55 acres of land. Eptam alone was applied to approximately five acres, and neither Eptam nor Telone was applied to the remaining acreage. Rayner also applied Telone, mixed with several possible contaminants, to several rows of potatoes.

Shortly after the potato plants began to emerge from the soil, Rayner again saw the same symptoms which he had observed in 1972. However, Rayner testified that these symptoms were located only in the fields which had been treated with Eptam. These symptoms were also observed by Gene Franzois, an agricultural consultant specializing in irrigation who had established Rayner's irrigation schedule in 1973. Franzois testified that he had observed damaged plants and potatoes with lesions on them in the areas which had been treated with Eptam. He also stated, however, that he had found damaged potatoes in the untreated areas as well. Rayner again requested Dr. Shields to visit his ranch.

Dr. Shields testified that in the fields which had been treated with Eptam, he found the same above ground and below ground symptoms which he had observed in 1972. He stated that these symptoms were not evident in the fields which had not been treated with Eptam. As in 1972, he was unable to discover any potato diseases which could have caused these injuries. On the basis of his experience as a plant pathologist and as a result of the observations he made on the appellants' ranch in 1972 and 1973, he stated that Eptam had to have been the agent which caused the injuries which destroyed the potato crops in both years.

Appellants contended at trial that they had isolated Eptam as the only possible cause of the tuber lesions which ultimately destroyed their potatoes. Appellants emphasized that in 1972 no lesions had appeared in the potatoes growing in the eleven rows which had been treated with Eptam and which had been, they asserted, leached below the root zones of the potato plants, and that in 1973 no lesions had appeared on the potatoes growing in the areas which had not been treated with Eptam.

The appellees, on the other hand, introduced evidence to show that Eptam could not have caused the lesions which appeared on the appellants' potatoes. Appellees called several expert witnesses who described experiments in which Eptam was used in various plants, including potatoes. None of these experts were able to cite a single instance in which Eptam had injured potato tubers. When applied to potato plants at greater than recommended levels, Eptam had caused a darkening and curling of the leaves, but had not damaged the potatoes' tubers. Stauffer's manager of research and development, Albert Benson, Ph.D., testified that on the basis of approximately 200 tests, Eptam had been proven to be safe and effective for use with potatoes.

Appellees' evidence also showed that when Eptam injured plants, it did so in a consistent and uniform manner: it did not injure the underground portions of the plants, but caused the above ground portions to become dark green in color with the leaves becoming malformed and "cupped" in appearance. These symptoms contrasted sharply with the appearance of the Rayner plants, which were described as being yellow or light green in color, with stiff, stunted leaves and tubular lesions.

Appellees' expert witnesses included two men with extensive experience in growing potatoes in California and Arizona. Harold Kempen, a specialist in weed control and a farm advisor in Kern County, California, testified that he had conducted several tests using Eptam on potatoes grown in Kern County. He testified that he had never seen Eptam damage potato tubers or reduce the yield of potatoes to any significant degree. He also stated that in tests conducted with the cooperation of farmers in Kern County, Eptam had never damaged potatoes. W. D. Pew, Ph.D., a vegetable research specialist and superintendent of the University of Arizona's experimental farm, testified that he had tested Eptam on potatoes grown in Arizona's Salt River Valley for eight years. He stated that there had never been an instance in which Eptam had injured potatoes during his years of testing and that he believed Eptam was safe for use on potatoes.

Appellants first argue that admission of appellees' evidence of prior experience with Eptam was contrary to the general rule, originally enunciated in Fox Tucson Theatres Corp. v. Lindsay, 47 Ariz. 388, 56 P.2d 183 (1936), that testimony of a lack of prior accidents or incidences of injury is inadmissible in a negligence action. In Fox Tucson, the plaintiff alleged that her injuries had been caused by the defendant's failure to furnish adequate lighting in a dark stairwell. The Court stated that the trial court had not erred in disallowing an employee of the defendant to testify that he had never known of any other accidents in the stairwell which had been caused by defective lighting. The Court's holding in Fox Tucson has been applied in other cases in which there has been an allegation that the defendant negligently failed to maintain specific premises. Thus, evidence offered to show the non-occurrence of similar accidents at a particular place has been excluded. E. g., Hlavaty v. Song, 107 Ariz. 606, 491 P.2d 460 (1971); St. Gregory's Church v. O'Connor, 13 Ariz.App. 421, 477 P.2d 540 (1970). ³

In this case, however, the evidence challenged by the appellants was introduced not to show the...