MURRAY LINDBLOM and GEORGINE LINDBLOM, Plaintiffs and Appellants,
SUN AVIATION, INC., a South Dakota Corporation, JEFF MUHLENKORT, individually, and NICHOLAS P. HYBERTSON, Defendants and Appellees
Considered on Briefs February 17, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CLAY COUNTY, SOUTH DAKOTA. THE HONORABLE STEVEN R. JENSEN, Judge.
CATHY A. KNECHT, Sioux Falls, South Dakota, Attorney for appellants.
STEVEN K. HUFF, BEAU C. BARRETT of Johnson, Miner, Marlow, Woodward & Huff, Prof., LLC Yankton, South Dakota, Attorneys for appellees.
GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
GILBERTSON, Chief Justice.
[¶1] Murray and Georgine Lindblom appeal the circuit court's judgment denying relief on their claim against Sun Aviation, Inc., Jeff Muhlenkort, and Nicholas Hybertson (collectively, " the Defendants" ) for negligently spraying pesticide on the Lindbloms' cornfield. The Lindbloms assert the circuit court should have given deference to a South Dakota Department of Agriculture (the Department) investigator's determination that Muhlenkort violated a safety statute. The Lindbloms further assert that the circuit court erred in concluding the Lindbloms did not prove the Defendants committed negligence--as a matter of law or otherwise. We affirm.
Facts and Procedural History
[¶2] In June 2011, Hybertson hired Muhlenkort to aerially apply herbicide to a cornfield located near Wakonda in Clay County, South Dakota. On the evening of June 24, 2011, Muhlenkort sprayed Hybertson's field with " Roundup Weather MAX" --an herbicide that purportedly damages or kills any vegetation that is not genetically modified to withstand the herbicide. The Lindbloms' cornfield, which was not modified to tolerate Roundup, was located to the north of Hybertson's field, across a 66-foot-wide, paved road flanked by ditches on both sides. Muhlenkort, who has held federal and state licenses for aerial spraying of crops since 1981, began loading the chemical at 7:45 p.m., took off for Hybertson's field at 8:00 p.m., began spraying around 8:20 or 8:30 p.m., and arrived back at his airfield at approximately 9:10 p.m. He testified that all available information indicated the winds had slowed to less than ten miles per hour by
8:00 p.m., and he tested for drift prior to spraying by discharging and observing smoke. The labeling requirements for Roundup prohibit application--by air or ground--in wind speeds in excess of ten miles per hour.
[¶3] Brad Trudeau, the owner of Centerville Ag--another company that sells and applies herbicides--witnessed Muhlenkort's application of the herbicide. Trudeau testified that he saw Muhlenkort flying about a quarter mile south of the Lindbloms' field, that the wind was blowing from the southeast at about 13 or 14 miles per hour, and that some of the herbicide drifted toward the Lindbloms' field. Several days after Muhlenkort applied the fertilizer to the Hybertson field, corn on the southern end of the Lindbloms' field appeared to begin dying. The Lindbloms contacted Hybertson, who confirmed that Roundup was sprayed on his field on June 24. Hybertson then contacted the Department to report the Lindbloms' concerns. The Department dispatched Virgil Sinning--an agricultural inspector for the Department for 27 years with an additional 16 years of experience in applying agricultural chemicals prior to his work with the Department--to investigate.
[¶4] Sinning inspected the Lindbloms' cornfield on July 6, taking samples and photographs. He walked from the north end to the south end, taking one sample at about one-third to one-half of the way into the field, another at about two-thirds of the way into the field, and a number of samples of the rows on the south end of the field. Sinning observed that the majority of the damage was located at the southern end of the Lindbloms' field, although he noted the first couple of rows closest to Hybertson's field were less damaged. Sinning theorized that the first several rows were protected by tall grass growing in the ditch. The samples indicated the presence of glyphosate, the active ingredient in Roundup. Although no evidence was introduced establishing the amount of the chemical required to damage or kill unmodified corn, Sinning concluded the damage to the Lindbloms' crop was caused by Roundup drifting from Muhlenkort's aerial application of the herbicide to Hybertson's field. The Department also determined that Muhlenkort sprayed in wind speeds ranging from eight to fourteen miles per hour. Based on this data and Sinning's report, the Department concluded Muhlenkort did not apply the Roundup in accordance with its label requirements. The Department informed Muhlenkort that it intended to pursue a civil penalty against him unless he agreed to pay $385 in settlement. Muhlenkort paid the settlement and the Department did not take any further action.
[¶5] The circuit court, however, heard other evidence favorable to the Defendants. In reaching its conclusion that Muhlenkort's conduct did not conform to label requirements, the Department relied on wind speed data collected from locations near Beresford and Yankton. The Department initially determined that wind speeds ranged from eight to fourteen miles per hour at the time Muhlenkort applied the herbicide to Hybertson's field. This data reflected conditions near Beresford around 8:00 p.m. Beresford data for 9:00 p.m. indicated wind speeds of six miles per hour with gusts up to eleven miles per hour. Data for the Yankton area indicated wind speeds of approximately nine miles per hour between 8:15 and 9:15 p.m. The National Data Center also reported wind speeds of nine miles per hour around
Yankton during this time, with no gusts ...