Summary of a Recent
Judicial Development in
Environmental Law

Plaintiff Must Show Actual Causation to Maintain Action in Negligence

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Kovac v. Spraymax, Inc., 911 So.2d 934 (La. Ct. App. 2005), the Louisiana Second Circuit Court of Appeals affirmed the decision of the district court, which had entered judgment in favor of an electric utility company and its contractor. Plaintiff landowner alleged that Defendants negligently damaged her peach trees by spraying herbicide outside of the right-of-way. The instant court held that the evidence supported its conclusion that the contractor's actions were not the cause-in-fact of the destruction of Plaintiff's trees.

Background

Plaintiff owned land that Entergy Louisiana, Inc. used to operate its electrical transmission lines. Id. at 935. To keep the lines functioning properly, a predecessor to Entergy entered into an agreement with Plaintiff from which the predecessor obtained a right-of-way to "clear and keep clear trees, limbs, and/or other vegetation which [Entergy] consider[ed] a hazard to any of its electric power or communications facilities or a hazard to the rendering of adequate and dependable service . . . by use of a variety of methods used in the vegetation management industry." Id. Entergy hired Spraymax, Inc. to trim vegetation around the power lines within the right-of-way. Id. In October 2001, Plaintiff sued Spraymax in district court, alleging that Spraymax over-sprayed its herbicidal chemicals creating an excess drift that damaged her peach orchards. Id. at 936. The court entered summary judgment in favor of Defendants. Id. Plaintiff appealed.

Arguments

Plaintiff argued that the trial court erred by failing to make any findings as to the damage to specific trees on her property. Id. at 938-39.

Analysis and Holdings

In the instant appeal, the court focused its attention on one issue: "whether Spraymax's actions were the cause-in-fact of the destruction of [Plaintiff's] peach trees and various other ornamental plantings and trees so as to make Spraymax liable for [Plaintiff's] alleged damage." Id. at 936. To maintain a cause of action in negligence,

the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached.
Id.

After it considered all the testimony and documentary evidence before it, the trial court found Defendant's expert witness to be the most credible. Id. at 938. The instant court held that this determination was clearly within the trial court's province. Id. Defendant's expert witness testified that over-spraying had occurred; however, the over-spraying was one of a series of like events that led to the demise of Plaintiff's trees and plantings. Id. Ultimately, Plaintiff could not show that Spraymax's actions were the cause-in-fact of her damages. Id.

The case was decided on September 21, 2005.