Jeffrey ANDERSON, et al., Appellants, v. STATE of Minnesota, DEPARTMENT OF NATURAL RESOURCES, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent, International Paper Co., f/k/a Champion International Corporation, Respondent, and Steven Ellis, Appellant, v. State of Minnesota, Department of Natural Resources, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent.
No. A03-679
Supreme Court of Minnesota
March 3, 2005
691 N.W.2d 181
Mike Hatch, Attorney General, Jerome L. Getz, Assistant Attorney General, St. Paul, MN, for Respondent DNR.
Alexandra B. Klass, Sara J. Peterson, Dorsey & Whitney L.L.P., Minneapolis, MN, for Respondent International Paper.
Craig E. Johnson, Johnson, Ramstad & Mottinger, P.L.L.P., Fargo, ND, for Respondent Terry Ricks, and T.L.T. Aerial AG. Service, Inc.
John P. Mandler, Kristin R. Eads, Faegre & Benson L.L.P., Minneapolis, MN, for amici curiae CropLife America, Minnesota Agricultural Aircraft Association and Minnesota Crop Production Retailers.
Bruce M. Kleven, Attorney at Law, St. Paul, MN, for amicus curiae Minnesota Farm Bureau Federation.
Daniel Weaver, Vice President, Navasota, TX, for amicus curiae American Beekeeping Federation, Inc.
OPINION
ANDERSON, RUSSELL A., Justice.
We granted the petition of appellants Jeffrey Anderson, James Whitlock and Steven Ellis (the beekeepers) to review a decision of the court of appeals affirming summary judgment in favor of respondents Department of Natural Resources (DNR) and International Paper Company (IP) on claims of negligence, negligence per se and nuisance and reversing the denial of summary judgment for the DNR on a portion of the common-law negligence claim. We affirm in part, reverse in part and remand.
Appellants Steven Ellis, Jeffrey Anderson, and James Whitlock are migratory commercial beekeepers who maintain beehives in Douglas, Pope, Todd, Stearns, Otter Tail, and Morrison counties. The beekeepers do not own the land on which they place their hives; and in lieu of rent, the beekeepers give a “thank-you gesture” of honey or a small amount of money to the landowners. The hives are located on land near privately owned groves or “plantations” of poplar trees grown for paper production and fuel research. The DNR and IP either own or manage the groves, and the beekeepers hold no interest in them.
When cottonwood leaf beetles began invading the DNR and IP groves in 1997 and 1998, respondents retained commercial spray operators to apply Sevin XLR Plus, a carbaryl-based pesticide toxic to bees. On one occasion, July 21, 1999, the DNR arranged through a chemical supplier to have an independent contractor spray a hybrid poplar plantation close to the location of some of Ellis’ hives. During this spraying, which the parties refer to as the “Swanson incident,” landowner Dale Swanson estimated that pesticide was applied “perhaps a hundred feet” from 32 of Ellis’ bee colonies. Minnesota Department of Agriculture laboratory analysis confirmed that at least some of Ellis’ bees died from carbaryl poisoning in the apparent “overspray” incident. During other sprayings, the beekeepers allege that the DNR and IP knew bees were foraging on land that the respondents either own or manage but directed that Sevin XLR Plus be applied anyway, resulting in dead bees and infected hives.
The beekeepers commenced actions alleging, inter alia, that (1) the DNR and IP negligently created an unreasonable risk of harm to the beekeeping operations; (2) that the DNR and IP were negligent per se, in violation of the
I.
Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn.2001); Rathbun v. W.T. Grant Co., 300 Minn. 223, 229, 219 N.W.2d 641, 646 (1974). On appeal from summary judgment, we consider whether the lower courts erred in applying the law and whether there are any genuine issues of material fact for trial. Northern States Power Co. v. Minnesota Metro. Council, 684 N.W.2d 485, 491 (Minn.2004). The existence of a duty generally is a question of law for this court to decide de novo. H.B. and S.B. By and Through Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996).1
Landowners owe a duty to use their property so as not to injure that of others. Farrell v. Minneapolis & R.R. Ry. Co., 121 Minn. 357, 361, 141 N.W. 491, 492 (1913); Dan B. Dobbs, The Law of Torts § 231 (2000) (landowners owe a duty not to create “a serious interference with [neighboring landowners‘] use and enjoyment of land by pollution or the like.“). We have explained this rule over many years and in many contexts. In Lorshbough v. Township of Buzzle, we held that a county in charge of a township dump was liable for forest fire damage to the plaintiffs’ real property as well as personal property where it was “reasonably foreseeable” that conditions at the dump violative of Minnesota Pollution Control Agency standards would cause the damage. 258 N.W.2d 96, 102 (Minn.1977). In Sime v. Jensen, we recognized that a landowner who elevates his land above the level of adjoining land will act reasonably by constructing a retaining wall to keep soil away from his neighbor. 213 Minn. 476, 480, 7 N.W.2d 325, 327 (1942). In Johnson v. Seifert, we held that an owner of lakefront property may use the abutting lake for recreational purposes, “provided such use is reasonable[.]” 257 Minn. 159, 168-69, 100 N.W.2d 689, 696-97 (1960). In Wilson v. Ramacher, we held that landowners may divert excess surface water to neighboring property as long as doing so constitutes a “reasonable use” based on balancing “whether the benefit to the diverter‘s land outweighs the harm to the land receiving the surface waters.” 352 N.W.2d 389, 393-94 (Minn.1984). In Peterson v. Balach, we charged land entrants as well as land possessors to act reasonably as we abolished distinctions between licensees and invitees. 294 Minn. 161, 173-74, 199 N.W.2d 639, 647 (1972). In Doe v. Brainerd International Raceway, Inc., we recognized that an auto-racing facility must be “reasonably safe for its patrons, which includes controlling and supervising other patrons to prevent foreseeable harm.” 533 N.W.2d 617, 621 (Minn.1995).
In Minnesota, a landowner owes only a limited duty to trespassing livestock. Witherell v. Milwaukee & St. Paul Ry. Co., 24 Minn. 410, 414 (1878). Instead, liability for trespassing animals “could only be predicated on willful or wanton negligence.” Lindemann v. Chicago, R.I. & P. Ry. Co., 154 Minn. 363, 365, 191 N.W. 825, 825-26 (1923). But once the landowner discovers the trespassing animals’ presence, the landowner is “bound to use reasonable care to avoid injuring them.” Witherell, 24 Minn. at 414.
Here, the beekeepers alleged that the DNR and IP intentionally sprayed pesticides with knowledge that foraging honey bees would be killed and/or would bring the pesticide back to the hives. Consequently, identifying the status of honey bees is unnecessary here because even if we were to classify bees as trespassers, a landowner is under a duty of reasonable care “once he knows or is on notice of both the trespasser‘s presence and the impending danger.” Dobbs, supra at 593. If, as the beekeepers allege, the DNR and IP had actual knowledge or were on notice of foraging honey bees, they may have come under a duty of reasonable care.3
Nevertheless, we cannot ignore comprehensive efforts addressing pesticide hazards. Congress has enacted the
As for judicial involvement, FIFRA preempts state-based negligence actions premised on breach of warranty, failure to warn, and other causes of action impinging on the EPA‘s power to enforce labeling requirements. Dow Agrosciences LLC, 332 F.3d at 333; Netland v. Hess & Clark, Inc., 284 F.3d 895, 898 (8th Cir. 2002); Nat‘l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 608 (8th Cir. 1999). Other state-based negligence actions are permitted. Peterson v. BASF Corp., 675 N.W.2d 57, 70 (Minn.2004) (state consumer-fraud claim premised on improper marketing not preempted), pet. for cert. filed, 73 USLW 3076 (July 16, 2004, no. 04-81); Goeb v. Tharaldson, 615 N.W.2d 800, 819 (Minn.2000) (negligent misrepresentation and negligent testing claims not preempted). See also Dosdall v. Smith, 415 N.W.2d 332, 335 (Minn.App. 1987) (affirming finding of negligence against licensed pesticide applicator and agricultural consultant); Red River Spray Serv., Inc. v. Nelson, 404 N.W.2d 332 (Minn.App.1987) (affirming judgment against pesticide applicator who oversprayed and damaged plaintiff‘s crops). Given this background and the land possessor‘s general duty to use property in a way that does not injure others, it seems to us that the beekeepers’ common-law action for the alleged loss of the bees foraging on DNR and IP land is a viable one.
To determine whether summary judgment was properly granted against the beekeepers’ negligence claim, we examine the record in the light most favorable to them. Based on documents that
As for the Swanson or overspray incident, the court of appeals reversed the district court‘s denial of summary judgment under the independent-contractor defense. The general rule is that an employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. Conover v. Northern States Power Co., 313 N.W.2d 397, 403 (Minn.1981) (citing Restatement (Second) of Torts § 409 (1965)). But an employer of an independent contractor may be found negligent when it retains detailed control over a project and then fails to exercise reasonably careful supervision over that project. Conover, 313 N.W.2d at 401. Here, allegations of liability were based on evidence that the DNR retained control over the operative detail of the work, was aware of beehives adjacent to the Swanson property but failed to inform the contractor, and forgot to obtain the landowner‘s permission before directing the contractor to spray the product. Although the DNR denied the allegations, as the district court concluded, the allegations were sufficient to preclude summary judgment in favor of the DNR.
II.
The beekeepers also made claims of negligence per se. Although negligence per se may be pleaded separately from negligence, the two causes of action are inseparably intertwined. “Negligence per se is a form of ordinary negligence that results from violation of a statute.” Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn.1981). “A per se negligence rule substitutes a statutory standard of
The
In support of their motion for summary judgment, the DNR and IP offered the affidavit testimony of the director of the Minnesota Department of Agriculture Pesticide Enforcement Section who said that “in order to be in violation of the label and in violation of the law, an applicator would need to spray Sevin XLR Plus at a time where there were a significant number of bees actively foraging in the treatment site and a significant number of blooming crops or weeds present.” The agency official, who served as an expert for the DNR and IP, said that his label interpretation was consistent with
When reviewing agency decisions, courts “adhere to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minnesota, 624 N.W.2d 264, 278 (Minn.2001) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977)). But in this case, the expert was not an agency decision-maker engaged in the evaluation of evidence by using his own expertise in an enforcement proceeding or adjudication. The expert‘s affidavit was obtained for purposes of litigation and was offered less than two weeks before the summary judgment hearing and a year and a half after the state had been sued. Consequently, the expert‘s interpretation of the pesticide label was not entitled to agency decision-maker deference. Nor, as the DNR and IP claim, was the expert‘s opinion entitled to Seminole Rock deference. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) (holding that administrative agency‘s construction of its own ambiguous regulation is entitled to “controlling weight unless it is plainly erroneous or inconsistent with the regulation“); see John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L.Rev. 612, 639 (1996) (explaining that “under Seminole Rock, the reviewing court asks whether the agency action—typically an enforcement action or adjudication—is consistent with an agency regulation“).7
On motion for summary judgment, a court is to consider all affidavits, along with pleadings, depositions, answers to interrogatories, and admissions from the nonmoving parties as well as moving parties.
III.
Finally, the beekeepers contend that the DNR and IP created a pri-
IV.
The DNR claims official immunity. The district court rejected the argument as it related to the Swanson incident, characterizing the DNR‘s actions as ministerial, not discretionary, and therefore not subject to official immunity. We agree. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn.1998). The district court did not address immunity surrounding other claims, and the court of appeals did not reach the issue at all. Therefore, the remaining immunity issues may be addressed on remand.8
V.
In summary, we hold that (1) a land possessor with actual knowledge or notice of foraging honey bees on the property comes under a duty of reasonable care in the application of pesticides; (2) the state agency expert‘s interpretation of the pesticide label was not entitled to judicial deference; and (3) the beekeepers lacked the requisite property interest for a private nuisance claim. We reverse the grants of summary judgment for common-law negligence and negligence per se and remand those claims to the district court. The dismissal of the nuisance claim is affirmed.
Affirmed in part, reversed in part, and remanded to the district court.
ANDERSON, G. BARRY, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
MEYER, Justice (dissenting).
I respectfully dissent from the majority‘s conclusion that a beekeeper enjoys a common law action for damages to bees that forage on another‘s land. I do not agree with the broad principle of law on which the majority builds its holding that “[l]andowners owe a duty to use their property so as not to injure the property of others” (citing to Dan B. Dobbs, The Law of Torts § 231 (2000) (emphasis added)). Neither this court nor any of the authoritative treatises on tort law have ever recognized such a broad duty to others’ property. A landowner‘s duty to others is more fairly and narrowly stated as a duty not to create “a serious interference with [neighboring landowners‘] use and enjoyment of land by pollution or the like.” Id. All of the cases cited by the majority in support of a broad duty to others’ property involve either a violation of agency standards or a circumstance where one landowner‘s use was interfering with a neighboring landowner‘s use of
The traditional common law rule regarding negligence claims for injuries to trespassing animals is that “[u]nless otherwise required by statute, a landowner owes no duty with respect to trespassing animals except to refrain from willfully or wantonly injuring them.” 65A C.J.S. Negligence § 431. The unique situation presented here is the fact that bees fly onto a neighboring landowner‘s property, the bees remove a substance from the landowner‘s property, and bring it back to their hive. Only two appellate courts have addressed what duty landowners owe to bees foraging on their property. Both the Wisconsin Supreme Court and the California Court of Appeals have addressed this question, and both courts have concluded that there should be no common law duty owed to bees foraging on a landowner‘s property. See Bennett v. Larsen Co., 118 Wis.2d 681, 348 N.W.2d 540, 547 n. 3 (Wis.1984); Lenk v. Spezia, 95 Cal.App.2d 296, 213 P.2d 47, 51 (1949). The Wisconsin Supreme Court explained this rule in Bennett:
[B]ecause land possessors have the right to reasonably use their property as they see fit, and because bees tend to enter property and there is little the land possessor can do to prevent their entry, there should be no common law duty owed to protect the bees on the property, except that the land possessor cannot intentionally or wantonly destroy the bees.
Bennett, 348 N.W.2d at 547-48 n. 3.
Common law liability for damage to bees has been limited to those cases where pesticide spray has drifted onto a neighbor‘s land and caused damage. The majority is plowing new ground in tort law by recognizing a common law duty owed to foraging bees. The majority concludes that a common law duty to foraging bees springs from the existence of comprehensive federal and state regulation of pesticides. The common law is “the body of law derived from judicial decisions, rather than from statutes or constitutions.” Black‘s Law Dictionary 293 (8th ed.2004). It makes no sense to say that a newfound common law duty springs from a duty arising from state or federal regulation—it is more appropriate to grant a remedy to the beekeepers under the principle of negligence per se, which “usually arises from a statutory violation.” Black‘s Law Dictionary 1063 (8th ed.2004).
The claim of negligence per se is that pesticides were applied in violation of federal and state regulations. Since the majority concludes that the beekeepers do have the remedy of negligence per se available, there is no reason to create a duty owed to beekeepers, independent from the provisions on the label. It is difficult for me to imagine how a jury could determine that spraying was conducted in a manner that creates an unreasonable risk of harm without reference to the label‘s requirements. The court should not create a common law duty of care owed to foraging bees.
BLATZ, Chief Justice (dissenting).
I join in the dissent of Justice MEYER.