Summary of a Recent
Judicial Development in
Pesticides

Lake Owner's Pesticide
Contamination Action Dismissed

Harrison M. Pittman
Staff Attorney

The Illinois Court of Appeals has affirmed a decision to dismiss a lake owner's claims against a pesticide manufacturer for damages the lake owner suffered when his lake was allegedly contaminated by pesticide runoff. Traube v. Freund, 775 N.E.2d 212, 214 (Ill. App. 2002), appeal pending (Nov. Term 2002). The lake owner claimed that the manufacturer created a nuisance when it helped a farmer prepare his pesticide-spreading equipment and that the manufacturer engaged in an ultrahazardous activity because the particular pesticide in question should not have been applied near an aquatic site. See id. at 215, 217. The court of appeals also affirmed the trial court's ruling that the lake owner's claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y.

The plaintiff in this action was David Traube. See id. at 214. The original defendants were Marcia Freund and Clarence Kloth, Jr. See id. Traube reached settlement agreements with Freund and Kloth and subsequently joined American Cyanamid as a defendant. See id.

Traube owned a lake that was adjacent to farmland owned by Freund and farmed by Kloth. See id. In April, 1995, an agricultural pesticide known as Counter 15G ("Counter") was applied to portions of the farmland adjacent to Traube's lake. See id. Counter is manufactured by American Cyanamid and is designed to eliminate grubs on a no-till corn crop. See id. On May 9, 1995, thousands of fish were killed on Traube's lake when it was allegedly contaminated by pesticide runoff from the adjacent farmland. See id.

Traube alleged that American Cyanamid created a private nuisance when one of its sales representatives "provided substantial assistance by calibrating Kloth's pesticide-spreading equipment and by giving advice, while failing to warn Kloth about using Counter near aquatic sites." Id. at 215. He also alleged that American Cyanamid engaged in an ultrahazardous activity because applying "Counter in proximity to aquatic sites is an ultrahazardous activity." Id. at 217. American Cyanamid argued that the action should be dismissed because its activities were not ultrahazardous and because Traube's claims were preempted by the FIFRA. See id. at 214.

The trial court ruled that Traube "had not pled and could not prove that American Cyanamid exercised any control over, or had any substantial involvement with, the application of the pesticide to the Freund property." Id. The trial court also ruled that "the mere manufacture of a pesticide does not give rise to a cause of action for ultrahazardous activity and that FIFRA preempted any remaining allegations of negligence." Id. Traube appealed the trial court's decision to the Illinois Court of Appeals. See id.

Traube argued that the trial court "erred in making a determination of the extent of American Cyanamid's participation and further erred in finding plaintiff's claims to be federally preempted, especially with respect to the issue of ultrahazardous activity." Id. The Illinois Court of Appeals affirmed each of the trial court's decisions. See id.

The appeals court first examined Traube's argument that American Cyanamid created a nuisance when it "provided substantial assistance by calibrating Kloth's pesticide-spreading equipment and by giving advice, while failing to warn Kloth about using Counter near aquatic sites." Id. at 215. Traube contended that American Cyanamid "should have advised Kloth about alternative pesticides and warned him about the use of Counter near aquatic sites." Id. at 215-16. The court noted that American Cyanamid conceded that one of its sales representatives "calibrated Kloth's equipment pursuant to Counter's label." Id.

The court explained that "to sustain a nuisance claim based on negligent conduct, a plaintiff must plead and prove the elements of negligence that gave rise to the alleged nuisance. Absent from the complaint are any allegations that American Cyanamid engaged in any negligent or intentional conduct giving rise to any nuisance." Id. at 216 (citing Malone v. Ware Oil Co., 534 N.E.2d 1003, 1006 (1989)). The court also explained that "the absence of a manufacturer's control over a product at the time the nuisance is created generally is fatal to any nuisance or negligence claim." Id. (citing City of Bloomington v. Westinghouse Electric Corp., 891 F.2d 611, 614 (7th Cir. 1989)).

The court rejected Traube's argument, stating that any advice provided by American Cyanamid's sale representative was consistent with the pesticide's label. See id. The court also stated that "Kloth himself read the label before applying the pesticide, a label which specifically stated that runoff could be hazardous to aquatic organisms in adjacent sites." Id. The court concluded that Traube's "failure to plead sufficient facts to state a cause of action supports the dismissal of plaintiff's claim. More importantly, however, plaintiff presented no genuine issue of material fact with respect to these claims." Id. The court added that "[t]he undisputed facts reveal American Cyanamid's limited role in this tragedy, thereby entitling American Cyanamid to a judgment in its favor." Id.

The court also rejected Traube's argument that "the application of Counter in proximity to aquatic sites is an ultrahazardous activity." Id. The court explained that a person who carries out "an abnormally dangerous or ultrahazardous activity is subject to liability for harm to the person, land, or chattels of a plaintiff resulting from the activity even though the defendant has exercised the utmost care to prevent the harm." Id. (citations omitted). The court also explained that "[t]he terms 'ultrahazardous,' 'abnormally dangerous,' and 'intrinsically dangerous,' refer to that type of danger which is inherent in the instrumentality itself at all times, and they do not include a danger that arises from the mere casual or collateral negligence of others with respect to it under the particular circumstances." Id. (citations omitted). The court added, "[t]he fact that an injury can be inflicted by an instrumentality does not make it an inherently dangerous instrumentality." Id. (citation omitted). Thus, according to the court, "a manufacturer of a product is not considered to be engaged in an abnormally dangerous activity merely because the product becomes dangerous when it is handled or used in some way after it leaves the manufacturer's premises, even if the danger is foreseeable." Id. (citing Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 916 F.2d 1174, 1181 (7th Cir. 1990) and City of Bloomington, 891 F.2d at 616-17).

The court concluded that Traube "simply cannot state a cause of action for ultrahazardous activity against American Cyanamid." Id. The court added that "American Cyanamid did not apply Counter to the Freund property, and the mere fact that Counter is a pesticide which may pose certain hazards, as identified on its label, does not render its application, particularly when applied in accordance with its label, an ultrahazardous activity with respect to American Cyanamid." Id. at 216-17.

The final issue that the court addressed was whether Traube's claims were preempted by the FIFRA. See id. at 217. The court explained that the FIFRA "is a comprehensive federal statute that regulates the use, sale, and labeling of pesticides and requires the registration with the EPA of all pesticides sold in the United States." Id. (citing Dickman v. E.I. Du Pont de Nemours & Co., 663 N.E.2d 507, 509-10 (1996)). The court also explained that courts have "overwhelmingly" ruled the FIFRA "expressly preempts any state-law claim that directly or indirectly challenges the adequacy of the warnings or other information on a pesticide's approved product label." Id. (citing Netland v. Hess & Clark, Inc., 284 F.3d 895 (8th Cir. 2002); Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199 (9th Cir. 2002); Kuiper v. American Cyanamid Co., 131 F.3d 656 (7th Cir. 1997); Worm v. American Cyanamid Co., 5 F.3d 744 (4th Cir. 1993); King v. E.I. Dupont De Nemours & Co., 996 F.2d 1346 (1st Cir. 1993); Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir. 1993); and Papas v. Upjohn Co., 985 F.2d 516 (11th Cir. 1993)).

The court stated that "[w]hile we need not address this issue to affirm the trial court's rulings, we agree that plaintiff's claims are preempted under the circumstances presented." Id. The court concluded that "FIFRA preemption clearly does not turn upon the name a plaintiff gives to his or her cause of action. Plaintiff's claims here fall within that category-they represent nothing more than state-law attacks on the adequacy of Counter's labeling. Therefore, plaintiff's claims are also preempted." Id.

The case was decided on August 14, 2002; this summary was prepared in November, 2002.