Thursday, August 9, 2018

Torts Down on the Farm

Overview

A tort is a civil (as opposed to a criminal) wrong or injury, other than breach of contract, for which a court will provide a remedy in the form of an action for damages. Tort law is based heavily upon state case law.  That means that different legal rules apply in different jurisdictions.  In addition, in all jurisdictions, tort law changes as new cases are decided. 

Tort law is concerned with substandard behavior, and its objective is to establish the nature and extent of responsibility for the consequences of tortious (wrongful) conduct.  Cases involving torts,

in an agricultural context, may involve such situations as employer/employee relationships, fence and boundary disputes, crop dusting and many other similar situations.

In today’s post, I take a look at several recent ag tort cases that provide a sampling of the tort situations that can happen on a farm or ranch.

Stray Voltage

In Halderson v. N. States Power Co., No. 2017AP2176, 2018 Wisc. App. LEXIS 645 (Wisc. Ct. App. July 24, 2018), the plaintiff’s dairy cows were experiencing health problems and the plaintiff contacted a veterinarian. In turn, the veterinarian suggested that the plaintiff contact an electrician that investigates stray voltage. The electrician found that the farm had stray voltage exceeding the defendant power company’s standards of one amp. The electrician suggested that the plaintiff request a neutral isolation from the defendant to separate the primary and secondary naturals, preventing any off-farm stray voltage from affecting the livestock. The defendant did so, and the cows’ health improved substantially. The plaintiff’s sued to recover economic losses to their dairy operation and, after a 12-day jury trial, the jury awarded the plaintiff $4.5 million dollars on the plaintiff’s negligence and nuisance claims. The jury also found that the defendant acted in a “… willful, wanton, or reckless manner…” thus activating treble damages under Wisconsin Code §196.64.

The plaintiff moved for judgment on the verdict. The defendant made numerous post-trial motions - renewing their motions to dismiss and for directed verdict. In addition, the defendant moved for a new trial based on a jury instruction and the plaintiff’s attorney failing to disclose that one of the juror’s uncles had been hired by the attorney as an expert witness on another stray voltage case. The trial court granted the defendant’s motion for directed verdict on the damages issue, stating that the evidence was insufficient to conclude that the defendant had acted in the manner that the jury found. However, the trial court affirmed the jury’s negligence findings and denied the motion for a new trial. The plaintiff appealed the directed verdict on the damages issue and the defendant cross-appealed the jury verdict on the negligence findings. The appellate court affirmed, and also noted that the defendant had failed to move for a mistrial on the conflict issue. 

Escaped Cattle

In Reasner v. Goldsmith, No. A17-1989, 2018 Minn. App. Unpub. LEXIS 578 (Minn. Ct. App. Jul. 9, 2018).  The defendant’s cattle escaped their enclosure and were involved in an automobile accident. The defendant claimed that the cattle broke through a closed pasture gate. The defendant testified that the fences were checked weekly and that the cattle had been in that particular pasture for at least a week. In addition, the defendant testified that he had been working the field between the pasture and the road that day, and the cattle were in the pasture the whole time. After returning the cattle to the pasture the defendant fixed a few wires on the gate. The defendant also noted that the cattle were uneasy, like they had been “spooked.” No photos were taken of the broken gate before the fix. There was no dispute that the cattle came though the field from the pasture. The plaintiff claimed that the defendant came to him in the hospital and apologized for leaving the gate between the pasture and the field open. There was also a statement by a passenger in the plaintiff’s vehicle claiming that he saw the cattle in the field and not in the pasture the morning before the accident.

The trial court relied heavily on the defendant’s testimony, and granted summary judgment for the defendant. The court determined that the defendant neither allow the cattle to be on the road nor knew that they were on the road. Also, the court reasoned that it was unforeseeable to the defendant that the cattle would escape because of the weekly fence checks. Thus, the cattle were not running at-large and the defendant was not negligent in keeping the cattle fenced in. On appeal, the appellate court determined that there was an issue of genuine fact remaining with respect to where the cattle were before the accident and what was the cause of their escape. Thus, the trial court’s grant of summary judgment was reversed and the case remanded. 

Statutory Protection for Horse-Related Injury

In James v. Young, No. 10-17-00346-CV, 2018 Tex. App. LEXIS 2406 (Tex. Ct. App. Apr. 4, 2018), the plaintiff, along with some others, offered to help at the defendant’s farm. An injury occurred to a child as a result of the defendant’s horses and the plaintiff sued, claiming negligent handling of horses. The defendant (in both the corporate capacity and individual capacity) moved for summary judgment based on no evidence, and the trial court granted the motion. The trial court granted the motions for summary judgment. The plaintiff did not appeal the grant of summary judgment for the defendant corporation, but did appeal the granting of summary judgment for the defendant individuals. The appellate court affirmed.

The plaintiff conceded that the Texas Equine Activity Limitation of Liability Act applied to the action. That Act protects owners of livestock and horses from liability from incidents stemming from the inherent risk of livestock and horses. However, the plaintiff claimed that the owner failed to make a reasonable effort to gauge the skill level of a participant to ensure safety – an exception to coverage under the Act. Since the no-evidence summary judgment motion is like a directed verdict, the burden is on the non-moving party to show genuine issue of material fact. The plaintiff never produced any evidence that the defendant failed to ask of the child’s riding ability or to prove that the lack of questioning lead to the accident directly. Thus, the appellate court affirmed the grants of summary judgment. 

Highway Fences 

In Bryant v. Reams, Civil Action No. 16-cv-01638-NYW, 2018 U.S. Dist. LEXIS 99929 (D. Colo. Jun. 14, 2018), the plaintiff lost her arm when the car she was riding in collided with a dead cow on a public roadway in southwestern Colorado. She sued the defendant cow owner for negligence and the state (CO) Department of Transportation (CDOT) for failing to maintain fences along the state highway, seeking compensatory and punitive damages. The cow had been grazing with a herd of the defendant’s cattle on Bureau of Land Management (BLM) land, and the defendant alleged that the defendant did not have a license to graze cattle on BLM land but was doing so by virtue of a sublease from another rancher that did have a lease to graze cattle on the BLM land. The plaintiff claimed that the CDOT failed to maintain fences along the highway in a manner that was sufficient to bar cattle from wandering onto the road, and that the fence at issue had deteriorated and cattle had previously caused multiple accidents on the roadway. Both the CDOT and the defendant cow owner filed motions for summary judgment.

The trial court partially granted the cow owner’s motion by dismissing the claim for exemplary damages on the basis that the evidence clearly showed that the cow owner did not act in a willful and wanton manner toward the plaintiff because they never intentionally grazed cattle alongside the highway, but denied the motion with respect to negligence claim against the cow owner finding sufficient evidence regarding proximate causation to submit the issue to the jury. The trial court also denied the CDOT’s summary judgment motion on the plaintiff’s premises liability claim against the CDOT citing evidence showing that CDOT had been notified that the fence needed to be fixed.

Before the case went to trial, the CDOT and the plaintiff settled, but the other defendants moved to designate CDOT as a non-party at fault which would reduce the cow owner’s percentage of fault. At trial, the plaintiff claimed that the jury should be instructed that the CDOT could only be apportioned negligence if the CDOT had actual notice of a deficient fence. If that is true, the cow owner would have a greater percentage of fault leading to a larger damage award. The trial court held that the CDOT had an affirmative duty to maintain fences adjacent to state roads for the safety of motor vehicles irrespective of any actual notice that a fence is in need of repair. Bryant v. Reams, Civil Action No. 16-cv-01638-NYW, 2018 U.S. Dist. LEXIS 99929 (D. Colo. Jun. 14, 2018).

Wind Energy Company Creates Nuisance and Must Pay

In re Wisconsin Power and Light, Co., No. ET-6657/WS-08-573, Minn. Pub. Util. Commission (June 5, 2018) illustrates the problems that a commercial wind energy operation can present for nearby landowners.  On October 20, 2009, the Minnesota Public Utilities Commission issued a large wind energy conversion system site permit to Wisconsin Power and Light Company (WPL) for the approximately 200-megawatt first phase of the Bent Tree Wind Project, located in Freeborn County, Minnesota. The project commenced commercial operation in February 2011. On August 24, 2016, the Commission issued an order requiring noise monitoring and a noise study at the project site. During the period of September 2016 through February 2018 several landowners in the vicinity filed over 20 letters regarding the health effects that they claim were caused by the project.

On September 28, 2017, the Department of Commerce Energy Environmental Review Analysis Unit (EERA) filed a post-construction noise assessment report for the project, identifying 10 hours of non-compliance with Minnesota Pollution Control Agency (MPCA) ambient noise standards during the two-week monitoring period. On February 7, 2018, EERA filed a phase-two post construction noise assessment report concluding that certain project turbines are a significant contributor to the exceedances of MPCA ambient noise standards at certain wind speeds. On February 8, 2018, WPL filed a letter informing the Commission that it would respond to the Phase 2 report at a later date and would immediately curtail three turbines that are part of the project, two of which were identified in the phase 2 report. On February 20, 2018, the landowners filed a Motion for Order to Show Cause and for Hearing, requesting that the Commission issue and Order to Show Cause why the site permit for the project should not be revoked, and requested a contested-case hearing on the matter. On April 19, 2018 WPL filed with the Commission a Notice of Confidential Settlement Agreement and Joint Recommendation and Request, under which WPL entered into a confidential settlement with each landowner, by which the parties agree to the terms of sale of their properties to WPL, execution of easements on the property, and release of all the landowners’ claims against WPL. The agreement also outlined the terms by which the agreement would be executed.

The finality of the agreement was conditioned upon the Commission making specific findings on which the parties and the Department agreed. These findings include, among others: dismissal of the landowners’ February 2018 motion and all other noise-related complaints filed in this matter; termination of the required curtailment of turbines; transfer of possession of each property to WPL; and a requirement that compliance filing be filed with commission. The Commission determined that resolving the dispute and the terms of the agreement were in the public interest and would result in a reasonable and prudent resolution of the issues raised in the landowner’s complaints. Therefore, the Commission approved the agreement with the additional requirement that upon the sale of either of the landowners’ property, WPL shall file with the Commission notification of the sale and indicate whether the property will be used as a residence. If the property is intended to be used as a residence after sale or upon lease, the permittee shall file with the Commission: notification of sale or lease; documentation of present compliance with noise standards of turbines; documentation of any written notice to the potential residence of past noise studies alleging noise standards exceedances, and if applicable, allegations of present noise standards exceedances related to the property; and any mitigation plans or other relevant information. 

Conclusion

Tort situations can arise in a myriad of ways for farmers, ranchers and rural landowners.  Think you might need an attorney sometime in the future that is well trained in these unique tort scenarios?  That’s what we’re doing at Washburn Law School.

http://lawprofessors.typepad.com/agriculturallaw/2018/08/torts-down-on-the-farm.html

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