AGRICULTURAL LAW EMPHASIS INDIANA

							Cl #18, Sept. 30, 2002
Chapter 7, Cont.
   -- Rights and Limitations in the use of Agricultural Property
    Note—Final Exam date ! 12/11 8:00-10:00 a.m.
   Test 1 – T&F and MC critique
   -- Recitation today:
   Case            Reporters
   Bennett – Gretchen Humphrey &Joshua Johnson
   Langan – Kyle Kuehnert & Chris Lindborg
      Nye - Chris Mast & Drew Mellon
Recitation
-- for Wednesday Oct. 2
   Cases                Students
   Ciaglo – Jason Morehouse & Brian Myers
   Lane – Scott Priebe & Cale Russler
   Katko – Donald Shoemaker & Lee Stanis
   Mcgaughey – Elizabeth Sturgeon & Mike
                                      Veld
   Jones -- Betsy Villwock & Richard
                                      Dobbyn
Test 1 --T&F and MC – 6 points

   1. __ In Indiana, an individual may represent
    him or herself in a "county" court.
   2. __ Generally, it is unlawful to practice law
    without a license in Indiana.
   3. __ In a civil action (e.g., a small claim
    case) the plaintiff has the burden of proof to
    show that the defendant is liable to him or her
    for damages.
Test 1
   4. __ In contract law a "memo"         6.___ In Indiana, under
    that is not signed by both              comparative fault law, if a
    parties is enforceable:                 plaintiff is held to be 60% at
         a. Only if both parties are       fault, then he or she may
    “licensed” in the area of their         recover 40% of his or her
    dealings.                               damages if the defendants at
         b. Only if the party who          fault are party to the suit.
    has not signed is a "merchant."
         c. Only if the party who         7. ___ Lawyers may be
    signed is a "merchant.“                 disbared or suspended from
                                            practice of law by the Indiana
                                            Supreme Court, if they are
   5.___ In "comparative fault"            proven to have mistreated a
    law an injured party may                client.
    recover damages even though
    he or she was "contributorily
    negligent."
Test 1                                    10. ___ "John Brown and
                                           Mary Smith," it says (and this
                                           all it says) in the grantee
   8.___ In Indiana, farm                 clause of a deed for land in
    employees have access to               Indiana. They are husband
    Workman's Compensation                 and wife under Indiana law.
    when injured in agricultural           John and Mary are:
    production activities on their        a. Joint tenants with right of
    employer's farm.                       survivorship.
                                           b. Tenants-in-common.
   9.___ In an installment land          c. Life tenants with a
    contract, a "strict foreclosure"       remainder interest in their
    clause may be void (not legally        children.
    enforceable) as a matter of             d. Tenants-by-the-entireties.
    public policy.
                                          11. ___ In contract law, a
                                           "memo" of the essentials,
                                           received in a reasonable time,
                                           that is ignored, is not
                                           enforceable unless the party
                                           who has not signed the memo
                                           is a "merchant."
Test 1
   12. ___ According, to the          14. __ In the usual
    "rectangular survey system,"        condemnation proceedings,
    the SW 1/4 of the of a "full"       the property owner, is the
    Section in "Whatever"               defendant.
    Township is: a. 80 acres. b.
    140 acres. c. 120 acres. d.
    160 acres. e. not a.- d.           15. __ Any limitation placed on
                                        land by a zoning ordinance is a
                                        “taking” subject to
   13. __ A local church has the       compensation.
    power of eminent domain and
    may take a landowner to court
    for a condemnation
    proceedings.
Test 1

   16.__ An essential feature in any recordable deed for
    land:
   a. Price paid must be clearly stated. b. “Words of
    conveyance” by the grantor.
   c. “Words of acceptance” from the grantee.
    d. Who prepared the document.
    e. b. and d.
   17. __ Under the "Statue of Frauds" in Indiana a pre-
    nuptial agreement may require no consideration.
   18. __ Indiana’s “right-to-farm” statute will solve all the
    complaints from non-farmer neighbors.
Liability for Pesticide Application

   Applicators and their employers may both be held
    liable on the following theories.
   Sprayers (Independent contractors)
       negligence
       trespass
       strict liability
   Employers (those who hire)
       vicariously liable on the grounds that the spraying is
        inherently dangerous, or
       strictly liable on the grounds that the activity is ultra-
        hazardous activity.                                       8
    Bennett v. Larsen Co.

   S. Ct. Wis.
    1984, 348 N. W. 2d 540
   Action?
   Negligence
   Facts:
       Bennett
       Facts:
   Pl was a beekeeper, and Larsen a sweet corn grower under farmer
    contracts.
   Under the grower contract, Larsen was responsible for monitoring and
    spraying for pests.
   Larsen found pests, and employed Ag Aire, Inc. to apply Sevin whose
    label had an ominous warning about the certainty of killing bees.
   Following a helicopter application, on Aug. 13, 1977, on Larsen’s fields,
    Pl found his bees dead or dying.
   The beekeepers organized to improve communications between corn
    growers and beekeepers.
    Bennett

   Facts continued:
   There was notice before spraying in 1978, but
    again there were bees killed.
   Pl brought suit (an action) for negligence
   But, the pl was failing to protect their bees!
   Issue: How do the instructions on a pesticide
    label affect the liability of the applicator, and the
    charge of negligence?
      Bennett
   Rule: Common law -- Landowners may make
    reasonable use of land, but they must take care not
     to injure neighbors.
   Holding: Under a WI statute, to violate a label is
    negligence per se (of itself, or as a matter of law,
     e.g., violation of a statute).
   No one may use a pesticide in violation of the label or
    in a careless or reckless manner.
   To apply the common law rule that the applicator had
    no responsibility to the neighbor’s bees would be in
    violation of the statute.
   There must be advance warning sufficient to allow the
    beekeepers to keep their bees off the spayed fields.
      Bennett

   Holding continued
   Once the pesticide user has delivered a
    warning, their liability for the bees is removed.
   The beekeeper is in the best position to see
    that the bees are contained once they have
    notice of the spraying.
   As for the 1977 injury, there was no notice
    despite the existence of listings of
    beekeepers, therefore negligence is in
    order.
      Bennett
       Holding continued
   In 1978, the beekeepers may have had proper
    notice so it is not clear that the 1978 spraying was
    in violation of the label.
   Case sent back to trial for further proceedings on the
    adequacy of notice.
   Spraying is held not to be an ultra hazardous activity!
       Benefits of spraying out weigh the risk of harm.
       Therefore, no strict liability!
    Langan v. Valicopters, Inc.

   S. Ct. of Wash., 1977, 567 P. 2d 218
   Action?
   Injury to organic crops
   Facts:
    Langan
   Facts: Langan (Pl) are organic farmers, they use
    nothing non-organic, and rely on natural pest
    controls!
   Valicopters (Def) engages in the application of
    crop chemicals.
   On June 3, 1973 Def sprayed Thiodan, and
    Guthion, for Thalheimer.
   Pl claims the helicopter began spaying on his
    field and and left pesticide on his crops in
    violation of the organic grower rules.
      Langan

   Facts: The pls were decertified by the national organic
    organization when an amount of the chemical was found
    on the crops though the amount was accepted by the
    FDA standards for human consumption.
     Lower court held for pl -- $5,500

   Issue?
   Is the defendant strictly liable?
      Langan

   Holding:
   At the time, at least three jurisdictions: Okla., La.,
    and Oregon have held crop dusting activity to be
    strictly liable for injuries.
   There is no reversible error on the part of the trial
    court.
   In fact, each test of the Restatement is satisfied.
    Langan Restatement Provisions
     Section 519
   1. One who carries on an abnormally dangerous
    activity is subject to liability for harm to the person,
    land or chattels of another resulting from the activity
    even though he has exercised the utmost care
    to avoid the harm.

   2. Such strict liability is limited to the kind of harm,
    the risk of which makes the activity abnormally
    dangerous.
   Factors for the abnormally dangerous:
   Whether the activity involves a high degree of risk
    of harm to the person, land or chattels of others.
        What is a chattel?
     Restatement -- Sec. 520 Factors for an abnormally
     dangerous activity (cont.)
   Whether the gravity of the harm is likely to be
    great,
   Whether the risk cannot be eliminated by the
    exercise of reasonable care,
   Whether the activity is not a matter of common
    usage
   Whether the activity is inappropriate to the place
    where it is carried on; and
   The value of the activity to the community.
   In this case, the court felt the test had been met.
    Duty to protect those on Ag land &
    potential for liability
   Landowners or farmers are not necessarily liable
    for those who are injured on their land.
   At common law, the duty owed to an individual
    on ones land depends on his or her status or
    reason for being there.
   Such as:
   Trespasser, licensee, or invitee
Potential for liability: to a
 Trespasser
   Duty owed a trespasser is slight.
   The landowner must avoid malicious
    conduct or unnecessary force.
   If a dangerous condition is known, there
    may be a duty to warn a known trespasser!
   “extra” force may be used with the
    commission of a criminal act
   But, it is a risky business to willfully injure a
    trespasser.
    Potential for liability: to a Licensee

   Definition -- one who enters with permission for
    his or her own business purpose rather than that
    of the landowner or tenant.
   Duty or standard of care rises compared to a
    trespasser.
   Duty to warn of “dangerous conditions.”
     a hunter may be an example

     “recreational user” statutes modify the
       requirements in this area such as Indiana’s at
        IC 14-22-10-2
What is a “restatement?”

   An attempt by the Am. Law Institute to present an
    orderly statement of the general common law of the
    United States
   From judicial decisions,
   And from court decisions or statutes,
   With focus on well thought out opinions, influential
    jurisdictions revealing modern trends.
   There are Restatements on contracts, torts,
    property, trusts, …
Potential for liability: To an Invitee

   Someone on the property related to the owner or
    farmer’s business,
   e.g., a repairman, a u-pick customer.
   Duty owed him or her is higher than that for a
    licensee.
   The invitee is entitled to find the premises
    reasonably safe.
   Note, Indiana has equated the social guest with
    the invitee!
       Formerly, a “social guest,” merited less protection than an
        invitee.
Nye v. Union Camp Corp.

    U S D Ct. S.D. Ga. 1987, 677 F. Supp.
     1220
    Action?
    Negligence.
    Facts:
 
         Nye

   Facts: Nye and others were at a lake when Nye
    decided to dive in for a swim at night.
   He hit his head on a stump.
   The lake was apparently private property, but regularly
    accessed via a dirt road by the public.
   Defendant admits that the lake was used by the
    public, but also stated that it was posted with no
    trespassing signs. (Query. Does this sign matter?)
   Defendant argues that Nye had no express permission
    to enter, and they deny knowledge of the presence of
    people at the time Nye was injured.
    Nye
   Issue?
    What duty is owed to Nye on the
    defendant’s property?
   Holding: Motion for summary judgement
    is granted.
   Duty owed Nye was that of a licensee, at
    best.
   The stump in the lake cannot constitute a
    hidden peril, and there is no evidence the
    defendant had knowledge of the stump.