With application season ramping into full gear, the issue of spray drift is on many minds, especially who is at fault when a pesticide drifts onto another's property. The Texas A&M AgriLife Extension has created a series of articles designed to look at the various issues regarding spray drift liability.
In the first article, "Pesticide Drift Liability (Part 1): Potential Legal Theories," they multiple types of legal claims a landowner can use if spray drift occurs. These claimes include negligence, strict liability, trespass adn nuisance. Each potential claim is examined in the article including the burden of proof of the plaintiff and defendent in these cases.The article cites various lawsuits that occurred under Texas law to help explain the concepts.
"Negligence is the most common legal claim made when spray drift occurs," the articles notes. "Essentially, a person is liable for negligence when he or she fails to act as a reasonable person would and that causes damage to another."
Strict liability occurs when an activity is so dangerous that even with extreme caution, an injury is likely to occur.
The tresspass claim is when any unauthorized person or substance is brought onto another's land without the landowner's consent.
For nuisance claims, the actions of the defendant must be shown to have substantially interfered with the plaintiff's use and enjoyment of his or her own property.
In the second installment in the series, "Pesticide Drift Liability (Part 2): Landowner Liability for Independent Contractor," the question is asked if the landowner could be liable for the acts of his independent contractor? This is a critical question that has not yet been answered by the Texas Supreme Court.
So, what is an independent contractor? In the state of Texas, it has been clearly defined.The Texas Supreme Court defines an independent contractor as “any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details.”
The question that is left to answer is whether an employee should be considered an independent contractor.
"Under Texas law, an employer is generally liable for the negligent acts of an employee who is acting in the course of his employment. The same is not true, however, for an independent contractor. Texas law makes clear that one who contracts for work to be done by an independent contractor is not liable for the contractor’s negligence."
Although the series is written from a Texas law perspective, it's best to find out what the laws in your state are in order to be in compliance and to know the restrictions.