Summary of a Recent
Judicial Development in
Environmental Law

Must Establish Causation and Damages to Recover
in Negligence Per Se Actions

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Squires v. Luckey Farmers, Inc., No. OT-03-046, 2004 WL 2072453 (Ohio Ct. App. Sept. 17, 2004), the Ohio Sixth District Court of Appeals affirmed in part and reversed in part the decision of the Court of Common Pleas, which had entered judgment for the company. Bringing actions for negligence and negligence per se, property owners claimed that the company sprayed pesticides and fertilizer near their property while the wind was blowing, causing damages to their trees and themselves. The instant court affirmed the trial court's judgment as it related to the property owners' personal injuries, reversed the trial court's judgment as to the damage to their property, and remanded the case for further proceedings.

Background

On May 6, 2000, while Louis and Deborah Squire were working in their garden located across the road from the farm of Luckey Farmers, Inc. (Luckey), they noticed a cloud of dust coming towards them. Id. at *1. Rather than dust, the Luckey was spraying an herbicide and liquid nitrogen into a 10-20 mile per hour wind gust creating a chemical drift. Id. The Squires alleged that as a result of the drift, their trees were damaged, their dog almost died, and Deborah suffered severe skin irritation and permanent rashes. Id. at *1-2. Thereafter, Louis filed a complaint with the Ohio Department of Agriculture. Id. at *2. A department investigator visited the Squires property and wrote a report detailing the extent of the damages from the drift. Id. Although the Squires' trees showed signs of damage and stress, the investigator was "unable to confirm physical drift had occurred based on physical symptoms." Id. The investigator took cuttings from some of the Squires' trees, ran tests, and determined the presence of Atrazine, a component of the herbicide used by Luckey. Id. Following the tests, the Ohio Department of Agriculture issued a warning to Luckey for violating Ohio Adm. Code: 901:5-11-02(G), which prohibited application of a "pesticide at such time or under such conditions that the wind velocity will cause the pesticide to drift and cause damage." Id. Luckey's field investigator visited the Squires' property on June 3, 2000, and noted leaf burn on their trees and speckling on their tomato plants. Id.

On December 27, 2001, the Squires filed suit claiming negligence, negligence per se, and loss of consortium. Id. at *3. The trial court adopted Luckey's proposed findings of fact and conclusions of law and entered judgment accordingly. Id. The Squires' appealed. Id.

Arguments

On appeal, the Squires alleged that the trial court erroneously entered judgment for Luckey and failed to award them damages despite the Ohio Department of Agriculture's finding that Luckey was negligent per se. Id. at *1. They also argued that trial court's decision was against the manifest weight of the evidence. Id.

Analysis and Holdings

In its analysis, the court concluded that Luckey violated Ohio pesticide law, which prohibited the application or use of pesticides in a negligent manner and required applicators to refrain from "spraying an herbicide at a time when the wind velocity would cause drifting." Id. at *4. For this reason, the trial court erred in failing to find Luckey negligent per se; however, unlike in strict liability actions, a finding that Luckey was negligent per se was not the end of the inquiry. Id. The Squires still needed to establish causation and damages. Id.

The court first addressed the question of proximate causation and damages with regard to the Squires' property. Id. at *6. To establish proximate causation, the Squires needed to present competent and credible evidence showing that but for Luckey's conduct their property would not have sustained damage. Id. They accomplished this through Louis Squires' testimony stating that "all the plants and trees on his property were healthy and in good condition prior to May 6, 2000, and that they died, were dying, or sustained severe damage after spray drift." Id. His testimony was confirmed by the Ohio Department of Agriculture investigator's report. Id. In response, Luckey failed to refute the causal connection presented by the Squires. Id.

To measure damages to real estate, the court used the following rule:

if the injury is of a permanent or irreparable nature, the owner of the property is entitled to recover 'the difference in the market value of the property as a whole, including improvements thereon, before and after the injury.' If the damage is reparable, that is, the property can be restored, 'the measure of damages is the reasonable cost of restoration, plus the reasonable value of the loss of the use of the property between the time of the injury and the restoration, unless such cost of restoration exceeds the difference in the market value of the property as a whole before and after the injury, in which case the difference in the market value before and after the injury becomes the measure.
Id. at 7.

Citing additional case law, the court stated that "if the owner of the land intends to use his property for his personal use and the trees and growth are damaged or destroyed," the owner can recover the costs of reasonable restoration in addition to diminution in value. Id. The Squires used the products of their trees and garden for themselves and for gifts. Id. Ultimately the court held that the trial court erred in adopting Luckey's "conclusions of law as they relate to the issue of damages to [the Squires'] property." Id.

The court then addressed "whether the trial court erred in adopting [Luckey's] conclusions of law as they relate[d] to the proximate cause of Deborah's alleged injury." Id. at *9. At trial, the court held that the Squires failed to establish a causal connection between Luckey's conduct and Deborah's injuries. Id. Although her doctor testified "that it was possible that the pesticide that Deborah was exposed to could have exacerbated her skin and developed the symptoms that she presented . . . ," the court found that the doctor's deposition testimony was "insufficient to establish that the spray drift was the proximate cause of [her] rashes." Id. The instant court agreed. Id.

Therefore, the court affirmed the trial court's judgment as it related Deborah's injuries, reversed the trial court's judgment as it related to the damage to the Squires' property, and remanded the case for further proceedings. Id. at *10.

The case was decided on September 17, 2004.