Herbicide drift — who’s liable?

Recently, a situation came to my attention. A landlord cash-rents farmland to a tenant. The tenant sprayed his crops with a glyphosate herbicide on a windy day. Some glyphosate drifted onto the neighbor’s property and killed the neighbor’s tomato plants and damaged his lawn. The neighbor was quite upset and demanded the landlord provide compensation for the tenant’s actions.

Before asking who is responsible, we must determine whether there has been any wrongdoing resulting in liability. In this case, there are three possible theories.

First, if the neighbor can prove that the tenant’s application on a windy day was not reasonable or that the tenant didn’t follow the label as to how the glyphosate should be applied, then the neighbor may be successful on a claim for negligence.

Second, there may be a nuisance claim. Nuisance is proven when one property owner unreasonably interferes with a second property owner’s rights to enjoy his or her property without interference. If there were multiple instances of herbicide drift, then the neighbor may have a claim.

A third possible theory for recovery is trespass, which is a physical invasion of another’s property. Recently, Minnesota recognized a claim for trespass when particulate matter from pesticide drifted onto an organic farmer’s property. Other states may soon follow this theory.

Another factor to consider is the amount of damages that may be recovered. In this situation, some tomato plants and grass were damaged. Because there were no physical injuries to a person, the extent of damages would be tied to the damaged property. The neighbor would have to prove the value of the tomato plants and grass lost due to the glyphosate drift. This might be proven through the cost of replacing or restoring the plants and grass.

With the issue of potential liability and damages defined, our next step is to determine who should be held responsible in this landlord-tenant situation. Typically, the tenant would be solely responsible for any damages the tenant’s actions caused to the property. There are very practical reasons for this rule.

A lease is similar to a sale of property for the period of time for which the lease runs. This means the tenant usually has exclusive possession of the property, and the landlord’s right to enter and use the property is suspended. Because the landlord doesn’t have an unrestricted right to enter the land, the landlord’s responsibility to control conditions on the land is also limited, and the landlord may not be responsible for the tenant’s negligent acts, or creation or maintenance of a nuisance.

There are exceptions to the rule, however. If the landlord is made aware that the tenant is creating a nuisance or engaging in behavior that negatively affects the neighbors, the landlord has a responsibility to control the problem and can be held liable for failing to do so. An Iowa case, Tetzlaff v. Camp, 715 N.W.2d 256 (Iowa 2006), details a situation in which the landlord demonstrated this exception quite well.

In Tetzlaff, the tenant surface-spread manure from his hog operation on land less than 90 feet from the neighbor’s home to the north and 160 feet to the south. The neighbor complained to the landlord, but the landlord did nothing. The tenant continued to rent the land and spread manure as usual. After several years of complaining with no result, the neighbor sued the tenant and the landlord. The court held that the landlord was responsible in this situation because he was aware that the tenant was negatively affecting the neighbor’s rights but failed to change the tenant’s behavior or terminate the lease.

It is not known in the herbicide drift situation whether there were previous complaints about the tenant. If not, it is likely the typical rules for responsibility will apply.

Application to others

Written lease agreements can help address these situations by spelling out circumstances when a landlord can enter the land, including for a right to inspect. This reserves the landlord’s right to be on the land and puts the tenant on notice the entry may occur. Also, the lease agreement should specify that the tenant must avoid causing a nuisance to surrounding landowners and provide the landlord grounds for terminating the lease if a nuisance occurs. It should also specify that the tenant is responsible for any negligence or nuisance the tenant’s actions cause.

Tenants should also take precautions to protect themselves. Liability insurance should be considered a business requirement. If personally applying herbicides, tenants should always follow directions on the label and other best practices to avoid damaging property. If crops will be sprayed from air, tenants should hire qualified companies and ensure the company makes all necessary decisions regarding applications to limit the tenants’ liability.

And all parties — landlord, tenant and neighbors — should use the most critical and cost-effective tool to avoid problems: communication. Communication may not solve every problem, but keeping neighbors abreast of upcoming farming activities, so they can take necessary precautions before damage occurs, can help avoid potential disagreements.

Eckley is an attorney at the Center for Agricultural Law and Taxation at ISU. Contact her at ekeckly@iastate.edu or 515-294-6365.

This article published in the July, 2012 edition of WALLACES FARMER.

All rights reserved. Copyright Farm Progress Cos. 2012.