Langan v. Valicopters, Inc.
10 ERC (BNA) 1614, 88 Wash. 2d 855, 567 P.2d 218 (1977)
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Rule of Law:
Aerial crop spraying constitutes an abnormally dangerous activity, subjecting the applicator to strict liability for damages caused by chemical drift, even if utmost care was exercised to prevent such harm.
Facts:
- Patrick and Dorothy Langan owned a 2.5 to 3-acre farm in the Yakima Valley, where they practiced organic farming, meaning they used no non-organic fertilizers, insecticides, or herbicides.
- The Thalheimers owned and farmed the land adjoining the Langans' property.
- On June 3, 1973, Valicopters, Inc., piloted by Gene Bepple, sprayed Thiodan and Guthion pesticides on the Thalheimer farm to control Colorado beetle infestation, traveling at 45 mph, 6-8 feet off the ground, with a 42-foot application boom.
- Patrick Langan testified that during one spraying pass, the helicopter began spraying while over his property, and the spray settled on their entire rows of tomatoes, beans, garlic, cucumbers, and Jerusalem artichokes.
- A laboratory test subsequently indicated the presence of 1.4 parts per million by weight of Thiodan on the Langans' crop tissue, which was below the FDA's tolerance but violated Northwest Organic Food Producers' Association (NOFPA) bylaws.
- The NOFPA board of directors revoked the Langans' certification as organic food growers, requiring decertification of their entire property due to the contamination, in conformance with their bylaws.
- Due to the decertification, the Langans pulled their contaminated tomatoes and beans from the ground to prevent further soil contamination and could not sell them commercially as organic produce.
Procedural Posture:
- Patrick and Dorothy Langan brought a lawsuit against Valicopters, Inc., Gene Bepple (Valicopters pilot), Thalheimer Farms, and Simplot Soilbuilders for damages.
- After a jury trial, a judgment in the amount of $5,500 was entered against the appellants (Valicopters, Bepple, Thalheimer Farms, Simplot Soilbuilders).
- The appellants appealed the judgment to the Court of Appeals, Division Three.
- The Court of Appeals, Division Three, certified the case to the Supreme Court of Washington.
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Issue:
Does aerial crop spraying constitute an abnormally dangerous activity, subjecting the applicator to strict liability for damages caused by chemical drift to an adjacent organic farm, even if utmost care was exercised?
Opinions:
Majority - Dolliver, J.
Yes, aerial crop spraying constitutes an abnormally dangerous activity, subjecting the applicator to strict liability for damages caused by chemical drift to an adjacent organic farm, even if utmost care was exercised. The Supreme Court of Washington affirmed the trial court's instruction on strict liability, adopting the Restatement (Second) of Torts §§ 519 and 520. Under § 519, strict liability applies to abnormally dangerous activities even if the utmost care is exercised. The court then applied the six factors of § 520 to determine if crop spraying is abnormally dangerous: 1. High degree of risk: Crop dusting involves a significant risk because chemical drift is virtually unpredictable and impossible to eliminate due to factors like particle size, air disturbances from the aircraft, and atmospheric forces. 2. Gravity of harm: The potential harm is great, as illustrated by the destruction of sensitive crops (like organic produce) and the resulting substantial economic loss, which was evidenced by the Langans' decertification by NOFPA. 3. Risk cannot be eliminated by reasonable care: The inherent unpredictability of dust or spray drift means that even the exercise of reasonable care cannot eliminate the risk of harm. 4. Not common usage: Although prevalent in the Yakima Valley, crop dusting is carried on by a comparatively small number of persons and is not an activity of common usage as defined by the Restatement. 5. Inappropriate to the place: Given the nature of organic farming, the use of pesticides adjacent to such an area is considered an activity conducted in an inappropriate place. 6. Value to the community: While pesticides are socially valuable, the court engaged in a balancing of conflicting social interests. It concluded that for an equitable balance, those who profit from the continued application of pesticides (the appellants) must bear the loss caused to others (the Langans) who were eliminated from their market through no fault of their own. The court also found substantial evidence to support the jury's finding that the NOFPA's interpretation of its bylaws was reasonable, which provided the basis for the Langans' damages. Additionally, the court upheld the instruction on wanton misconduct, finding sufficient evidence in Patrick Langan's testimony regarding the helicopter flying low over his house while spraying, in violation of WAC 16-235-050.
Analysis:
This case significantly broadened the application of strict liability in Washington by definitively classifying aerial crop spraying as an abnormally dangerous activity. It emphasizes a modern interpretation of the Restatement (Second) of Torts, prioritizing the protection of landowners from the inevitable risks of certain industrial activities, even when conducted with care. The ruling suggests a societal preference for internalizing the costs of dangerous but useful activities to those who benefit from them, rather than shifting the burden to innocent, adjacent landowners. This precedent is crucial for environmental protection cases and for delineating liability for activities with a high potential for off-site harm, particularly in the context of specialized farming practices.
