Liability

Almost all pesticides are considered hazardous. Even the most careful applicators sometimes have damage claims brought against them. The usual claims are for nonperformance, misapplication, crop injury, property damage, and/or contamination of non-target areas. It is important for all certified applicators to be informed of the most common claims, which could be brought against them.

Key points on this page

• Recognize and understand the liability issues of incorrect application procedures.
• Learn the steps you should take to protect yourself against pesticide misuse suits.
• Understand the importance of insurance.

Drift

Drifting pesticides are a major cause of environmental contamination and damage to non-target areas. In general, the courts have held the pesticide applicator and the customer who hired him jointly liable in drift cases. The customer is responsible when he hires or contracts for a "particularly dangerous operation" such as the application of pesticides. However, don't depend on the customer to share costs. He may file another suit against you claiming that you agreed not to cause drift damage. In certain instances, the manufacturer of the pesticide may also be held liable. If the label does not clearly warn about the possibility of drift, the manufacturer may share liability.

Target Site

Claims of injury to the target site (crop, turf, shrub, etc.) that was treated or claims that the pesticide had not performed as expected involve the dealer, the manufacturer, and the applicator. The courts must decide which of the three recommended or guaranteed the product for that specific use on that target. The party in error must accept the blame and pay damages. Applicators must make sure that all pesticides they use are recommended on the label for that purpose. Detailed records of all pesticide applications can be used in this circumstance to support the applicators' claim of proper pesticide use. Then, and only then, may the blame possibly be placed on the manufacturer.

If the target site injury was not great or total, the customer or applicator must show how much damage was from the pesticide and how much was from other conditions such as weather, disease, etc. This breakdown is not necessary in cases with great or total injury. Both the applicator and customer may be held liable for injury resulting from negligent application.

Personal Injury

The application of pesticides is considered an especially dangerous or, in legal terms, an "ultra-hazardous" activity. As a result, the pesticide applicator is liable for any injury to a person from the pesticide. Usually the injured person can recover damages without proving negligence of the applicator. The injured party must only prove that he is free of any negligence and did not assume the risk of pesticide exposure. The liability in most cases involving personal injury or death depends on proving the applicator negligent.

Wrong Site

If the pesticide is applied on a field, crop, or area other than the one it was intended for, serious problems can result. In the event that damage or over-tolerance occurs or that the owner just didn't want the area treated, the applicator may be charged with negligent application. Defense is very difficult. Double check on addresses, site locations, and all landmarks before you treat an area. Applying pesticides to the wrong site can be very costly.

Bees

Honeybees are very important to the farmer and often he has his own colonies or hives. However, bees are insects and are very susceptible to many pesticides. If the bees in hives are killed as the result of drift from nearby application sites, the applicator can be held legally responsible and must pay for damages. In some states an applicator is liable only if he fails to notify adjacent landowners prior to the pesticide application. Some states require notification of registered beekeepers prior to applications in the vicinity of beehives. Check your state regulations for this requirement.

However, if bees are exposed to the pesticides while in the sprayed site, the applicator is not usually liable. Unless the applicator has ignored a label direction that specifically would have protected the bees, the courts have ruled that the bee is trespassing and that the land doesn't need to be safe to uninvited animals. Play it safe! Know where the beehives are located in your area. Warn the beekeeper beforehand when and where you will be spraying.

Attractive Nuisance

The rulings on "attractive nuisance" usually involve cases where children are attracted to ground equipment or aircraft and injure themselves. The owner and/or applicator are held liable for injuries caused to children, even if they are trespassing, when the landowner fails to take reasonable precautions to prevent injuries from dangerous equipment, which can be attractive to children. In order for a precaution to be reasonable, children must frequent an area so that the landowner expects their presence.

Therefore, beware! Do not leave ground equipment with exposed drive belts, drive wheels, gears, or any moving parts unattended in areas where children can get to them. Aircraft should never be parked where curious children can find them. Pesticides in unlocked or open vehicles should never be left unattended. Empty containers and aerosol cans are also attractive and dangerous to children. Store and dispose of them properly!

Noise

Recently claims have been brought against applicators for noise damage. Homeowners, as well as others, have claimed damage or loss of property value caused by noise of aircraft and ground equipment operating above or near their property. They must prove direct loss of property due to noise from machinery operated carelessly or negligently. In some cases, an owner will claim that an applicator made an unlawful flight over his property without his permission. This is especially important in aerial applications when pull-ups over nearby property are necessary. Applicators and owners are legally liable only if the noise created is excessive or unreasonable. Reasonable noise is not legally a nuisance, even though it may be irritating. Successful defense is possible when the applicator can show that the noise wasn't the cause of injury or that no damage occurred.

Cross Contamination

Every year there are cases of pesticide cross contamination reported which may damage the sites being treated. There are three ways that this may occur:

1. The applicator may make an error in mixing or filling in the spray tank. He may not have removed all the pesticide left over from the last application. In this case, both the applicator and owner may be liable.
2. Open containers of herbicides such as 2,4-D can vaporize (become a gas) and penetrate other pesticides, which are stored nearby. When other pesticides are applied, a 2,4-D contamination can seriously injure the site.
3. The manufacturer may make a mistake in labeling, formulating, or refilling a container.

The applicator must know which container of pesticide was used on the site so that laboratory tests can be made. The lab tests can show whether the contamination occurred during mixing and filling or earlier. In cases involving herbicide contamination, it is difficult to prove whether it is the result of vaporization during storage or manufacturer error. The courts must decide who is to blame.

NOTE: All applicators should write the location and thedate that the pesticide was applied on the label of each pesticide container.They should also record the lot number in case cross contamination does occur.Detailed records of every application should be kept.

What To Do When You Are Involved

If you become involved in any legal problem, act carefully and promptly. Always be friendly and helpful. Never admit liability. Be careful whom you give information to about your spray operation. Offer to look into the matter immediately.

• Examine your records to make sure that you were actually operating in the area at the time of the alleged injury.
• Make sure that all of your records are up-to-date, particularly as to the identity of the equipment used, temperatures, wind direction and velocity, and all other pertinent data.
• Proceed to the scene immediately and make notes of all essential information when you get there.
• Record the presence of any adverse condition that you observed at the time of your investigation, particularly insect infestations, disease, water stress, late planting, and carry-over effect from any other materials that may have been used.
• Photograph, using color film and a sufficiently close focal length, any adverse condition found so that an expert can examine the symptoms.
• Save the container that was used in the job. If it is not practical to save the whole container, save the label or use close-up color photography to record the label.
• Notify your insurance company immediately.
• If you do not have insurance for the loss involved, request permission to have an expert examine the site or the property, so that you may have the benefit of his opinions.
• If a chemical company is involved, notify them immediately. They will probably also want to send their experts to the site.
• Obtain the names and addresses of all witnesses who might testify to the nature of the operation and conditions of the site before and after. In the event that the site of application is perennial, examine the USDA aerial photographs to ascertain the condition of the orchard or other perennial plantings in years prior to the year of alleged injury.

Insurance

To protect yourself and your business you, as a pesticide applicator, should have insurance for possible pesticide mishaps. Some states have insurance requirements. It is now required in some states to list your insurance company on the pesticide certification application, before it is valid. There are many different types of insurance plans; they include bodily injury, property damage, restricted chemical liability and comprehensive chemical. The plan you choose should fit your needs and your business. Be sure to explore the costs, benefits, and drawbacks of each insurance plan before you buy. You need to know exactly what your coverage includes. An insurance agent who specializes in pesticide insurance is the best person to advise you on your individual insurance needs.

Public Relations

It is always important to maintain a goodpublic image as a pesticide applicator. Here are some things to consider:

• Always be courteous. First impressions can often be long lasting. Calm words help to open future discussion.
• Listen to the question. Let the person know that you understand the basis for his or her concern.
• Be prepared. Applicators should know what materials are being applied, why they are being applied, and what its basic characteristics are. Keep accurate records.
• Have an answer. Be as informed as possible and do not give information you are not sure of.
• Take information. Include name, location, date, time and details of the situation and request for information.
• Be prompt. Problems may come up during the busiest times, but dealing with them as quickly as possible may make the difference between an easy solution or a complicated expensive one.
• Keep good records. A simple file that includes inquiries and course of action taken may prove to be important documentation.

No matter how careful you are, accidents will happen. You must be prepared for any emergency. Above all, keep calm.

Liability – Self Study Questions

1. If you apply a pesticide and the wind carries it off target, are you liable even though you tried to be careful?
2. If the site you applied a pesticide to is injured, even though you followed the directions and dosages on the label, who could be liable?
3. Is the application of pesticides legally considered to be an ultra-hazardous activity?
4. Can you be sued for applying pesticides to the wrong target area, even though no damage is done?
5. What is the legal standing of bees that are killed while they are “visiting” in a sprayed field?
6. From a legal standpoint, why should you never leave pesticide equipment or empty pesticide containers around where children could be attracted to them?
7. If someone accuses you of pesticide misuse, what steps should you take to protect yourself?
8. List at least three practices that are important for good public relations.
9. Who can best advise you on your insurance needs?

Answers to Self Study Questions -- Liability

1. Yes. The applicator and/or customer are responsible for his/her actions.
2. The dealer, manufacturer, applicator, or owner may be liable.
3. Yes. Application of pesticides is legally considered as ultra-hazardous.
4. Yes. It is the applicator’s responsibility to apply the pesticide to the proper target area.
5. They are considered to be “trespassing” and therefore, the applicator is not usually liable. In some states, the applicator can be liable if procedures for prior notice to adjacent landowners are not followed.
6. They are an “attractive nuisance” and the owner and/or applicator are held liable.
7. Some steps to protect yourself are:
   1. — check your records
   2. — make notes of the scene
   3. — record conditions at the scene
   4. — take photos
   5. — save the pesticide containers
   6. — notify insurance company and chemical company
   7. — make a list of all witnesses
8. Always be courteous, listen patiently, be prepared, and be able to answer any questions, take notes, be prompt, and always keep good records.
9. An insurance agent who specializes in pesticide insurance.

(RDG1222008)

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Disclaimer: Please read the pesticide label prior to use. The information contained at this web site is not a substitute for a pesticide label. Trade names used here in are for convenience only; no endorsement of products is intended, nor is criticism of unnamed products implied. Most of this information is historical in nature and may no longer be applicable.