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Schott v. South Dakota Wheat Growers Association

Supreme Court of South Dakota

December 27, 2017

DALLAS SCHOTT and CORSON COUNTY FEEDERS, INC., Plaintiffs and Appellants,

          ARGUED OCTOBER 4, 2017


          JUSTIN M. SCOTT MELISSA E. NEVILLE of Bantz, Gosch & Cremer, LLC Aberdeen, South Dakota Attorneys for plaintiffs and appellants.

          MICHAEL L. LUCE of Lynn, Jackson, Shultz & Lebrun, PC Sioux Falls, South Dakota Attorneys for defendant and appellee.

          ZINTER, JUSTICE.

         [¶1.] Dallas Schott, the owner of Corson County Feeders, Inc., sued South Dakota Wheat Growers Association (SDWG), alleging its agronomist incorrectly prescribed a herbicide that Schott sprayed on his 2014 sunflower crop. The herbicide was not labeled for use on all of Schott's sunflowers, and 1, 200 acres were destroyed. The circuit court granted SDWG summary judgment, ruling that Schott assumed the risk. We reverse and remand because there are disputed issues of fact concerning Schott's knowledge and appreciation of the risk.

         Facts and Procedural History[1]

         [¶2.] SDWG provides a variety of agronomy services for growers. The services include recommending chemicals, seed varieties, and fertilizers that SDWG sells. The services also include direction on what herbicides to use on what crops. To properly provide those services, SDWG performs field scouting and soil testing. It also maintains field lists and aerial maps of its customers' crops.

         [¶3.] Schott farms 12, 000 acres of land in north-central South Dakota. In 2008 or 2009, he started growing sunflowers with advice from two SDWG employees: Craig Maher, the SDWG agronomy manager, and Jason Fees, the SDWG agronomist. Each year SDWG provided Schott with a large binder that contained the plans for what he would plant in each field. The plans were based on soil testing and Schott's previous year's crop. The plans also included SDWG's recommendation for herbicide applications on each field. Schott testified in his deposition that over the years, he had asked SDWG agronomists for direction on what herbicides to use on his crops and that he followed those directions "a hundred percent."

         [¶4.] The dispute in this case arose because of a mistaken use of a herbicide called "Beyond" on Schott's "non-Clearfield" variety of sunflowers. Confection, con-oil, and oil variety sunflowers are raised in Schott's area, and each variety is sold in both Clearfield and non-Clearfield types. The Clearfield and non-Clearfield varieties are not distinguishable when growing, but the proper herbicide to be used is dependent on the variety. "TapOut" is a herbicide designed for use on non-Clearfield sunflowers. The herbicide Beyond is specifically designated for Clearfield sunflowers because that variety has been genetically modified to tolerate Beyond. However, non-Clearfield sunflowers do not tolerate Beyond. SDWG sells both of these sunflower varieties and herbicides at its facility.

         [¶5.] When Schott first started growing sunflowers, he only grew the non- Clearfield, oil seed variety. In 2012, Fees introduced Schott to Dahlgren & Co., Inc., another seed supplier. Thereafter, Schott began purchasing a mixture of sunflower varieties from Dahlgren, but he continued to purchase herbicides from SDWG. Although Schott was then purchasing sunflower seed from Dahlgren, Schott testified that Fees determined the number of acres that would be planted with each sunflower variety. According to Schott, this practice continued from 2012 through 2014.

         [¶6.] Following this practice, in December 2013, Fees developed a written plan for Schott's 2014 crop of around 3, 200 acres of sunflowers. The plan included ordering both TapOut and Beyond, indicating Fees intended Schott to plant both Clearfield and non-Clearfield sunflowers. However, Fees would later claim that the plan changed. During discovery, Fees testified that around January 24, 2014, Schott told Fees that Schott had changed his plan and was only going to plant the Clearfield variety. Schott denied the conversation occurred. He claimed he was obligated to plant the Dahlgren-contracted mixture of varieties. Schott also testified that he did not know what Clearfield sunflowers were. He insisted that at the time of planting and spraying the crop at issue, he neither knew what Clearfield sunflowers were nor the difference between the Clearfield and non-Clearfield varieties.

         [¶7.] In any event, Schott ultimately planted the Dahlgren-contracted sunflowers (both Clearfield and non-Clearfield varieties), and in June 2014, he contacted Fees for a herbicide prescription. Fees prescribed and furnished Beyond even though Schott had planted an incompatible, non-Clearfield variety. Schott then sprayed his sunflowers with Beyond, which killed 1, 200 acres of the non-Clearfield variety.

         [¶8.] Schott subsequently brought this suit against SDWG for negligence, breach of contract, and breach of warranty. SDWG moved for summary judgment, claiming that Schott assumed the risk and was contributorily negligent. SDWG argued that Fees did not tell Schott to spray Beyond on non-Clearfield sunflowers; that Schott alone sprayed Beyond and caused the damage; that Schott was a licensed spray applicator in the State of South Dakota and was responsible for reading the label on the chemicals he sprayed; that Schott admitted he did not read the Beyond label, which indicated it could only be used on the Clearfield variety; ...

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