Summary of a Recent
Judicial Development in
Pesticides

Ruling in Pesticide Drift Case
Reversed and Remanded

Brandy L. Brown
National AgLaw Center Graduate Assistant

In an action brought by an Arkansas cotton farmer against a neighboring rice farmer and a crop duster when the cotton farmer's crop was allegedly damaged by exposure to a pesticide that drifted onto the cotton farmer's crop, the Arkansas Court of Appeals has reversed and remanded a trial court's determination that the rice farmer and crop duster were not negligent. McCorkle Farms, Inc. v. Thompson, 84 S.W.3d 884 (Ark.App. 2002). The appeals court ruled that the trial court erred when it admitted a report prepared by the Arkansas State Plant Board Commission that concluded that the crop duster was not liable, when it did not allow a jury instruction that stated that a violation of a State Plant Board regulation was evidence of negligence, and when it did not allow a jury instruction pertaining to the liability of an owner for an independent contractor's negligence in performing an inherently dangerous act. See id. at 889-92. The appeals court also ruled that the trial court erred when it admitted certain statistical evidence offered by the defendants involving the average per-acre yield for a ten-year period because the evidence was unreliable due to the lack of comparability to the cotton farmer's land and growing conditions. See id. at 892.

McCorkle Farms, Inc. ("McCorkle Farms"), was an Arkansas cotton farming operation. See id. at 886. Joey McCorkle, an officer for McCorkle Farms, testified that in 1992, McCorkle Farms planted 472 acres of cotton and that "the crop had a good start." Id. He also testified that on July 7, 1992, he noticed symptoms, such as "elongated leaves and funny-looking bolls," that are often associated with exposure to 2, 4-D, a pesticide commonly applied to rice, but which can also be damaging to cotton. See id. He reported these symptoms to McCorkle farm's crop consultant and to the Arkansas State Plant Board. See id. McCorkle testified that the south and southeast sides of the McCorkle farm property appeared to have suffered the heaviest damage. See id.

GeneThompson operated a rice farm located near McCorkle Farms. See id. Shortly before the damage to the cotton crop was discovered, Thompson had hired Randy Atkinson to apply a pesticide known as 2,4-D to his rice crop. See id.

The Arkansas State Plant Board sent two investigators, Keith Houchin and Lonnie Smith, to McCorkle Farms to examine the alleged crop damage. See id. Houchin testified that after he and Smith examined the cotton crop, they concluded that, based on the irregularity of the damage, McCorkle Farms' 2, 4-D exposure was a result of drift as opposed to a direct application. See id. Houchin also testified "that the symptoms appeared heaviest on the southeast corner of the McCorkle Farms acreage and lighter toward the northwest corner." Id. In addition, Houchin testified that "he determined that the source of the 2, 4-D exposure was the aerial application made on Thompson's farm by Randy Atkinson." Id.

Houchin also stated at trial that the State Plant Board has regulations that "require aerial applicators to file a report with the board within five days of an application." Id. at 886-87. According to the reports filed by Atkinson, he applied 2, 4-D to Thompson's Farm on July 4, 1992, and July 7, 1992. See id. at 887. Houchin testified that these regulations "prohibit the application of 2, 4-D if the wind velocity is in excess of five miles per hour or the temperature is in excess of ninety degrees." Id. Houchin testified that he compared official weather reports from Jonesboro and Memphis with Atkinson's report. See id. Based on that comparison, he concluded that the aerial applications of 2, 4-D made on July 4, 1992, and July 7, 1992, were done outside the conditions specified in the regulations. See id. Houchin testified from a transcript produced by the State Plant Board Pesticide Committee hearing in which the board determined that "there was not sufficient evidence to show that Atkinson was responsible for the damages outlined in the complaints received by the board." Id.

Avril Brown, a nearby farmer who previously farmed the subject land from 1962 until 1990, testified that he noticed the damage after July 4, 1992. See id. Brown said that he farmed comparable land that was close to the McCorkle Farms acreage and that his average cotton yield for 1992 was 966 pounds per acre. See id. In addition, Brown testified that "when he farmed the McCorkle Farms acreage, he would average between 850 and 1,000 pounds per acre in a good year and between 500 and 600 pounds per acre in a poor year." Id.

In 1992, Gene Thompson farmed 12,000 acres of rice that was located south and east of McCorkle Farms. See id. Thompson testified that he knew the risk of drift associated with the use of 2, 4-D. See id. He also testified that although he gave Atkinson the time frame in which to apply the 2, 4-D to his rice crop, he failed to "give Atkinson any other instructions, warnings, or cautions." Id. Thompson testified that he failed to check the 2, 4-D label, which contained instructions and precautions, and that he failed to check Atkinson's plane to see if it was in compliance with the regulations. See id. Thompson also testified that he knew that the regulations held him liable, as owner, for any damage resulting from Atkinson's actions. See id. He also testified, over objection, to the average cotton production yields for Cross County for a ten-year period between 1982 and 1992, as contained in ASCS and Extension office documents. See id.

McCorkle Farms brought a negligence action in the Cross County Circuit Court against Delta Farms Elevator, Inc. ("Delta"), Delta's president and sole shareholder, Gene Thompson, and Randy Atkinson d/b/a Buffalo Island Flying Service ("Atkinson") "after noticing symptoms consistent with its cotton crop being exposed to the pesticide 2,4-D." Id. The jury determined that neither Thompson nor Atkinson were liable for negligence. See id. McCorkle Farms appealed that decision to the Arkansas Court of Appeals. See id.

The appeals court first examined McCorkle Farms' contention that the trial court erred when it allowed into evidence the Plant Board Pesticide Committee's conclusions that there was insufficient evidence presented to the board to establish that Atkinson was responsible for the 2, 4-D exposure to McCorkle Farms. See id. at 888. The court explained that "[r]elevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. (citing Ark. R. Evid. 401). It also explained that "[o]ur courts have repeatedly held, however, that a trial judge may exclude evidence, although relevant, if its probative value is substantially outweighed by the danger of unfair prejudice." Id. (citing Ark. R. Evid. 403) (additional citations omitted) (emphasis supplied). The court added that Rule 403 "only excluded evidence that is unfairly prejudicial." Id. (emphasis supplied). In Berry v. State, 718 S.W.2d 447 (1986), the Arkansas Supreme Court defined "unfairly prejudicial" as an "‘undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" Id. (quoting Berry, 718 S.W.2d at 453). The court concluded that based on this definition, the State Plant Board Committee's report was unfairly prejudicial and should not have been admitted.

The court stated that

[t]he jury, not the Plant Board, was charged with making factual findings on McCorkle Farms' allegations in this case. By having the Plant Board's report in evidence, the jury was placed in a position of being forced to either reach a conclusion different from that reached by an official agency of the State of Arkansas or to adopt that same conclusion, despite believing that the evidence actually supported a different conclusion because it was made by an official agency . . . . The use of the Plant Board's report to cross-examine its own investigator about the Board's conclusion was an attempt to tell the jury which result to reach.

Id. at 888-89 (citation omitted) (emphasis supplied).

The court rejected Thompson's argument that because the Plant Board was an administrative agency that had authority to conduct investigations, its report should be admitted under Federal Rule of Evidence 803(8). See id. at 889. Rule 803(8) is the public records exception to the hearsay rule. See id. The court ruled that the State Plant Board hearing constituted a special investigation that resulted from a specific complaint and it therefore was not admissible under Rule 803(8). See id. The court explained that if the State Plant Board's investigation had been part of its routine duties, as opposed to being conducted in response to a specific complaint, its findings would be admissible under Rule 803(8). See id.

The court noted that the possibility of outside influence by an interested party in conducting the special investigation was significant, especially when McCorkle, the complaining party, was not even present at the administrative hearing. See id. at 890. The court added that the the Rule 803(8) exception "guards against the risk of people using public agency investigations as a litigation tool by banning as evidence at the trial the factual findings contained in special reports that result from particular complaints, cases, or incidents." Id. (citing Daniels v. Tew Mac Aero Servs., Inc., 675 A.2d 984 (Me. 1996) (emphasis supplied)).

Next, the court examined McCorkle Farms' argument that "the trial court erred in failing to instruct the jury that violation of a Plant Board regulation concerning the use of the pesticide 2, 4-D was evidence of negligence." Id. at 890. At trial, McCorkle Farms argued that because "Thompson allowed Atkinson to apply the 2, 4-D outside the regulations," Thompson was therefore responsible for the damage to McCorkle Farms' cotton crop. Id. McCorkle Farms attempted to introduce the State Plant Board's regulation into evidence and Thompson objected. See id. The trial court informed McCorkle Farms that it could either introduce the regulations into evidence or have the jury instructed that "violation of the regulations was evidence of negligence." Id. McCorkle Farms attempted to exercise both of these options. See id. It submitted a jury instruction based on two AMI jury instructions, and the court denied these instructions without explanation. See id.

The appeals court ruled that the trial court erred by failing to give the proffered AMI jury instructions to the jury. See id. at 891. It stated that

[t]he Arkansas Supreme Court has emphasized that, when an AMI instruction is applicable in a case, it shall be used unless the trial judge finds that it does not accurately state the law and, in the event it is not used, the trial judge is required to state his reasons for refusal.

Id. at 890 (citations omitted).

The court also stated that by allowing the regulations to be introduced into evidence, without a jury instruction, the regulations alone were potentially confusing and misleading to the jury. See id. at 891. It concluded that "[t]he proffered jury instruction correctly and clearly applied the law to the facts of the case. Therefore, the trial judge erred by not giving this proffered instruction." Id.

Next, the court examined McCorkle Farms' argument that the trial court erred when it refused to issue another AMI jury instruction that stated "that a party who hires an independent contractor to perform work involving an inherently dangerous instrumentality is liable for the negligence of the independent contractor." Id. The court ruled that the instruction should have been given to the jury because it was accurate and it correctly applied applicable law to the stated facts of the case. See id. at 891-92.

The court noted that in Chapman Chem. Co. v. Taylor, 222 S.W.2d 820 (Ark. 1949), the Arkansas Supreme Court ruled that "the spreading of 2, 4-D by air is unduly hazardous to nearby crops." Id. (citation omitted). It also noted that in Southwestern Bell Tel. Co. v. Smith, 247 S.W.2d 16 (Ark. 1952), the Arkansas Supreme Court ruled that "because of the propensities of 2, 4-D to produce injury or damage to the property of others, a person making use of such substances cannot escape liability for such injury or damage by employing an independent contractor to make the actual application." Id. (citations omitted). The court concluded that

[w]hen Thompson delegated the spraying of his premises to Atkinson, whether as an employee or independent contractor, he assumed full responsibility for Atkinson's acts. The requested instruction is a proper statement of the law under our cases and based on an AMI instruction. As such, a reversal must follow the refusal of a proper instruction.

Id. at 891-92 (citation omitted).

Finally, the court examined McCorkle Farms' argument that "the trial court erred in allowing Thompson to introduce statistical evidence of average per-acre yields for a ten-year period in support of its contention that McCorkle Farms did not suffer a reduction in its yield as a result of 2, 4-D exposure." Id. at 892. The trial court allowed Thompson to use the statistical averages in his opening statement and when he testified that McCorkle Farms did not suffer a yield loss based on the historical data. See id. The appeals court ruled that the trial court should not have allowed Thompson to use the statistical data. See id.

The court reasoned that evidence of average yield per-acre for prior production years was not reliable to assess the amount of damages sustained because of the variability of weather conditions and other annual factors. See id. (citing J.L. Wilson Farms, Inc., v. Wallace, 590 S.W.2d 42 (Ark.Ct.App. 1979)). The court noted that Wallace also stood for the proposition that the statistical averages of the same crop for the same year were relevant in comparing the actual yield from the damaged land with the actual yields of surrounding, undamaged lands to determine the amount of damages sustained. See id. The court concluded that [t]he admission of the average-yield reports was error because there was no showing of comparability to [McCorkle Farms'] lands and growing conditions, as required by Wallace. Without the showing of comparability, the yield averages could mislead the jury and would have little independent relevance." Id.

The case was decided on September 18, 2002; this summary was posted March 2003