Landowners who apply or contract for the application of pesticide may have concern over their potential liability should pesticide drift occur and cause damage to neighboring crops. Generally, lawsuits related to drift sound in negligence. However, there are two additional potential claims that may arise in these cases of which landowners should be aware.  Hannes Zetzsche, a third-year law student at the University of Nebraska, and I recently co-authored an article on liability for pesticide drift.  In particular, the article looks at two important questions and offers the answers for each of the fifty states.

Specifically, the first issue relates to whether the application of pesticides is considered inherently dangerous. This is a critical question because under tort law in most states, a landowner is not liable for the acts of his or her independent contractor. One exception to that general rule provides that landowners may be held liable for actions of an independent contractor if the action being taken by the contractor is considered to be inherently dangerous. The second issue relates to a claim of strict liability against persons who apply pesticide. Unlike the more common negligence theory, strict liability does not consider the reasonableness of the defendant’s action. Instead, this legal theory imposes almost automatic liability if certain actions are taken.

To find out the answer in your state, or to see what approaches other states have taken, click here to download the article.

I’d like to thank Hannes for all of his hard work on this article.  He certainly did the heavy lifting!

*Tiffany Lashmet is a partner of the National Agricultural Law Center (www.nationalaglawcenter.org) at the University of Arkansas System Division of Agriculture, which serves as the nation’s leading source of agricultural and food law research and information. This material is provided as part of that partnership and is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.