862 N.W.2d 549
S.D.2015Background
- In June 2011 Muhlenkort (licensed aerial applicator) sprayed Roundup WeatherMAX on Hybertson’s field near the Lindbloms’ conventional cornfield; the fields were separated by a 66-foot paved road and ditches.
- Roundup label prohibited application by air or ground in winds over 10 mph. Muhlenkort testified he began spraying ~8:20–8:30 p.m. after confirming winds were under 10 mph and testing drift with smoke; he also used an anti-drift agent.
- Centerville Ag owner Trudeau observed Muhlenkort earlier and reported winds ~13–14 mph and some spray drifting north; several days later the southern end of the Lindbloms’ corn showed damage.
- Department investigator Sinning found glyphosate residue in Lindblom corn, concluded glyphosate drifted from Muhlenkort’s application, and the Department (relying on regional weather station data) settled with Muhlenkort for $385 rather than pursue a civil penalty.
- The circuit court heard competing evidence (no reliable local wind data; Beresford/Yankton data differed; prior herbicide applications, wet conditions, and a later Roundup ground application to adjacent soybeans) and found Muhlenkort credible and not negligent. The Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court must defer to Dept. of Agriculture’s pre-hearing finding that Muhlenkort violated SDCL 38-21-44(2) | Dept. determined drift and violation; court should give agency finding great weight under SDCL 1-26-36 | Agency did not issue a post-hearing adjudication; settlement was not an adjudicative decision or admission of guilt | No deference required; pre-hearing settlement/decision not entitled to statutory appellate deference |
| Whether Muhlenkort was negligent per se by violating SDCL 38-21-44(2) (label violation) | Settlement/agreement with Dept. shows Muhlenkort violated label and is negligence per se | Settlement did not constitute an admission; fact issue for trial court whether label was violated | Not negligence per se; settlement insufficient to prove statutory violation; factfinder credited Muhlenkort |
| Whether evidence established negligence generally | Glyphosate present and crop damage only explained by Muhlenkort’s spraying | Alternative causes (prior Verdict application, wet conditions, later ground Roundup on adjacent soybean field), disputed wind data, and factual credibility support | Circuit court’s finding that Muhlenkort was not negligent was supported by evidence and not clearly erroneous |
| Whether the settlement payment estopped Defendants from contesting violation | Lindbloms argued payment admitted liability | Defendants said payment settled potential enforcement, not admission of guilt | Settlement payment not an admission; cannot bind civil tort proceeding as an agency adjudication |
Key Cases Cited
- Osman v. Karlen & Assocs., 746 N.W.2d 437 (S.D. 2008) (bench-trial factfinder and credibility deference rule)
- Fifteen Impounded Cats v. State, 785 N.W.2d 272 (S.D. 2010) (appellate review standard for findings of fact)
- In re Estate of Pringle, 751 N.W.2d 277 (S.D. 2008) (review standard: ‘‘definite and firm conviction’’ test)
- Thompson v. Summers, 567 N.W.2d 387 (S.D. 1997) (statutory violation may constitute negligence per se)
- Anderson v. Minnesota Dep’t of Natural Res., 693 N.W.2d 181 (Minn. 2005) (agency expert testimony not entitled to deference absent adjudicative proceeding)
- Cox v. U.S. Dep’t of Agriculture, 925 F.2d 1102 (8th Cir. 1991) (agency decisions upheld if supported by substantial evidence)
- Englund v. Vital, 838 N.W.2d 621 (S.D. 2013) (elements of negligence)
- Hubbard v. City of Pierre, 784 N.W.2d 499 (S.D. 2010) (appellate deference to trial court’s credibility determinations)