Meranda Nixon Estate Wine, L.L.C. v. Cherry Fork Farm Supply Co.Meranda Nixon Estate Wine, L.L.C. v. Cherry Fork Farm Supply Co.
OPINION
Collins Roche Utley & Garner, and Richard M. Garner, for appellants.
Reminger Co., LPA, and Robert W. Hojnoski and Jennifer J. Jandes,
HENDRICKSON, J.
{¶ 1} Plaintiffs-appellants, Seth Meranda and Maura Meranda (“the Merandas“), appeal the decision of the Brown County Court of Common Pleas granting summary judgment to defendants-appellees, Cherry Fork Farm Supply Co. (“Cherry Fork“) and Kyle Martin, on the Merandas’ claims for damages to their vineyard as a result of herbicide drift. For the reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings.
I. FACTS
{¶ 2} Seth owns a 49-acre farm in Ripley, Brown County, Ohio. On the farm, Seth and his wife grow multiple varietals of grapes from which estate wines are made. A portion of the wine yield is for the Merandas personal use and the remaining yield is sold through a winery business, the Meranda Nixon Estate Wine, LLC dba Meranda Nixon Winery (“the winery“), which is operated on the property and is owned by Seth and Maura.1
{¶ 3} Grapes are grown in four different blocks on Seth‘s farm: Blocks A, B, C, and D. Block A, which is located on the southeastern portion of the property, is just over two acres in size and has Norton and Catawba grapes planted on it. Blocks B and C are more centrally located on the property, with Block B being more northern than Block C. Block B is approximately four acres in size and is used to grow Traminette, Chardonnay, and Cab Franc grapes. On Block C, which is about six acres in size, Traminette, Cabernet Sauvignon, Chardonnay, and Norton grapes are grown. Block D, which is approximately four acres in size, is located on the western portion of Seth‘s property. Cabernet Sauvignon and Chardonnay grapes are grown in Block D.
{¶ 4} Seth‘s farm is neighbored by other farmland. To the north of his property is a farm owned by his brother, Jerome Meranda. To the south is the Fussnecker farm. Finally, to the west of Seth‘s farm, or “directly behind” Seth‘s farm, is the Bulow Farm. In 2018, Seth had a crop-sharing agreement with Bulow that allowed him to farm Bulow‘s soybean field, which was located somewhat near the Block D grapevines. Between the Bulow‘s soybean field and the Block D grapevines was a triangular shaped portion of Seth‘s property. This triangular shaped property served as a buffer zone between the grapes in Block D and the Bulow soybean field. A map of Seth‘s property has been set forth below.
{¶ 6} When Seth called Cherry Fork to request a burndown of the Bulow soybean field and herbicide application to portions of his home farm, he spoke with Cherry Fork‘s Office Manager, Michelle Meranda (“Michelle“).4 Michelle and Seth have conflicting memories of what occurred when they spoke on April 28, 2018. Michelle believes that Seth specifically requested that the following herbicides be used: Authority XL, Roundup PowerMax, and Weedar Amine (2,4-D). Seth, however, contends that when he spoke to Michelle on April 28, 2018, he merely requested spray of his farm and a burndown of the Bulow soybean field. Seth told Michelle what crops he intended to plant on the Bulow field once burndown was complete. While he requested that 2,4-D ester not be used,
{¶ 7} Cherry Fork was unable to immediately spray the Bulow soybean field or Seth‘s home farm due to weather conditions and the need to fulfill spray orders from other customers. Seth repeatedly followed up with Cherry Fork to find out why the burndown and herbicide applications he had requested had not occurred.
{¶ 8} On May 10, 2018, Cherry Fork was able to begin the herbicide applications Seth requested. Michelle indicated that she spoke with Seth that morning by phone to ensure that he still wanted the Bulow soybean field and his farm sprayed. Seth advised Michelle that “it‘s getting late enough, I need it sprayed.” Michelle could not recall if she discussed the weather conditions with Seth that day. She did recall, however, discussing the weather conditions with Kyle Martin, the Cherry Fork employee and licensed commercial applicator who had been sent to fulfill Seth‘s spray orders. Michelle recalled that prior to Martin beginning the spray at the Bulow soybean field, he had called and expressed concern about the wind conditions. She advised Martin that “Seth wanted it sprayed and he said it would be okay, it was late enough in the game, he really needed it burnt down.” Martin could not recall what conversations he had with Michelle on May 10, 2018 prior to starting his application at the Bulow soybean field. However, he does not think he spoke to Michelle about wind conditions as he recalls that the wind “wasn‘t terrible” when he started the chemical application.
{¶ 9} Martin has been a licensed commercial applicator for 20 years and has sprayed 12,000 to 14,000 acres per year during that time. When he first started spraying, he used a handheld wind meter to determine wind speeds. However, Martin found the handheld instrument to be inaccurate. He has learned to identify wind conditions by observing trees blow. He also uses a weather app on his cellphone to monitor the wind.
{¶ 10} On May 10, 2018, despite his employer having a handheld wind meter available, Martin decided to check weather conditions using the Weather Channel app on his cellphone. He checked the weather conditions on site before starting application on the Bulow soybean field. Martin began to spray the Bulow soybean field at 12:32 p.m.
{¶ 11} Martin applied a combination of Authority XL, Weedar Amine (2,4-D), Roundup PowerMax, Heno D, and water to the field using an RG1100 Rogator tractor. Authority XL, Weedar Amine (2,4-D), and Roundup PowerMax are all herbicides. Heno D is a glyphosate activator that serves as a wind control and anti-foaming agent. It is used to help avoid herbicide drift. The conditions and manner in which herbicides can be sprayed are governed by the labels on the individual herbicide products.5 As relevant to this case, the Weedar
Do not apply at wind speeds greater than 15 mph. Only apply this product if the wind direction favors on-target deposition and there are not sensitive areas (including, but not limited to, residential areas, bodies of water, known habitat for nontarget species, nontarget crops) within 250 feet downwind. If applying a Medium spray, leave one swath unsprayed at the downwind edge of the treated field.
{¶ 12} The Roundup PowerMax label provided, in pertinent part, as follows:
AVOID CONTACT OF HERBICIDE WITH FOLIAGE, GREEN STEMS, EXPOSED NON-WOODY ROOTS OR FRUIT OF CROPS (EXCEPT AS SPECIFIED FOR INDIVIDUAL ROUNDUP READY® CROPS), DESIRABLE PLANTS AND TREES, AS SEVERE INJURY OR DESTRUCTION COULD RESULT.
* * *
Do not allow the herbicide solution to mist, drip, drift, or splash onto desirable vegetation * * *.”6
{¶ 13} Finally, the Authority XL label stated as follows:
The interaction of many equipment and weather-related factors determines the potential for spray drift. The applicator is responsible for considering all these factors when making application decisions. Avoiding spray drift is the responsibility of the applicator.
* * *
Drift potential increases at wind speeds of less than 3 mph (due to inversion potential) or more than 10 mph. However, many factors, including droplet size and equipment type determine drift potential at any given wind speed. AVOID GUSTY OR WINDLESS CONDITIONS.
{¶ 14} At the time Martin started his herbicide application of the Bulow soybean field, he indicated the sun was out, there were only a few clouds, and the wind was calm. However, as he was in the process of applying the herbicides, Martin noticed it was getting “breezy” and “a little gusty.” Martin “could tell the chemical was starting to move a little bit.” Martin was unsure of how far into the herbicide application of the 47-acre Bulow field he was when he noticed that the wind had picked up, but he decided to finish spraying the Bulow property before shutting down for the day. Martin completed the herbicide application at 1:34 p.m. He then filled out the Spray Order form for Cherry Fork. On this form, Martin noted he completed a burndown of the soybean field and that the wind speed was “15 mph” and from the “west.” After
{¶ 15} The following day, on May 11, 2018, Martin sprayed Seth‘s home farm, applying Authority XL, Heno D, Durango, and water to farmland that surrounded the grapevines. Martin started the application at 8:09 a.m. and finished the application at 8:53 a.m. Martin‘s Spray Order form indicates that it was sunny that day, with winds coming out of the east and southeast at 5 m.p.h. Martin noted on the Spray Order form that he “went slow around grape vines to keep nozzles pressure at 9 psi.” Martin indicated there were no issues with chemicals drifting this day.
{¶ 16} While giving a customer a tour of the vineyard on May 11, 2018, Seth noticed damage to the grapes and grapevines in Block D. Seth reached out to Cherry Fork to find out what chemicals had been sprayed. Later that month, on May 29, 2018, David T. Daniels, the director of the Ohio Department of Agriculture (“ODA“), toured the Meranda Nixon Winery. Seth claims that Daniels noticed “spray damage” to the grapevines after touring Blocks C and D. On June 14, 2018, Seth contacted the ODA, Division of Plant Health, Pesticide & Fertilizer Regulation Section, to report that his grapevines had been damaged by spray drift following an herbicide application to a field adjacent to his vineyard.
{¶ 17} The ODA sent Zachary Weber to inspect the damage to Seth‘s grapevines and to conduct an investigation into the source of the damaged vines. Weber inspected Seth‘s property on June 18, 2018 and took samples from the property for testing. In a June 28, 2018 report (“the ODA‘s June 28, 2018 Case Investigation Report“), Weber noted that there was a “[v]isible damage pattern on the property. More damage starting from the west and less as you move east on Meranda property.” Weber noted that in addition to Cherry Fork‘s May 10, 2018 herbicide application to the Bulow soybean field and its May 11, 2018 application to Seth‘s home farm, two other neighboring farms had applied herbicides to their properties prior to Weber‘s inspection. On June 3, 2018, Joshua Fussnecker applied a combination of Roundup PowerMax and Zidua PRO to the field south of Seth‘s property, and on June 8, 2018, Jerome Meranda applied the herbicide Liberty to the field north of Seth‘s property. Weber obtained data about wind speeds on the dates of the various herbicide applications from the weather station at the Clermont County Airport, which was located approximately 27.5 miles away from the vineyard. In the June 28, 2018 Case Investigation Report, Weber stated that at the time of appellees’ May 10, 2018 herbicide application to the Bulow soybean field, the wind was “16 mph bearing 300 [degrees] with gusts up to 22 mph” and for their May 11, 2018 application to Seth‘s home farm, the wind was “6 mph bearing 120 [degrees].” For the June 3, 2018 herbicide application at the Fussnecker farm, the wind was “11 mph bearing 290 [degrees] with gusts up to 18 mph.” Finally, for the June 8, 2018 application to Jerome Meranda‘s Farm, the wind was “7 mph bearing 250 [degrees].”
{¶ 18} Weber concluded the June 28, 2018 Case Investigation Report with the following summary of his inspection:
While viewing the [Seth] Meranda property, I did observe a noticeable pattern of damage. The most damage was observed on the far west side of the vineyard and the damage became less and less as you move toward the east. I did not observe any other pattern of damage around any of the other fields that surround
the vineyard. The weather data collected does indicate that the wind was blowing in the direction of the Meranda Vineyard during the Cherry Fork Farm Supply application on 5/10/18. A chemical analysis of the plant tissue collected may tell if the active ingredients of the pesticides applied are present on the Merandas’ property.
{¶ 19} On August 15, 2018, a “Notice of Warning” letter was issued to Martin by Matt Beal, the Plant Health Chief with ODA‘s Division of Plant Health, Pesticide & Fertilizer Regulation Section. The letter stated, in pertinent part, the following:
Pursuant to the Ohio Department of Agriculture‘s (ODA) authority in
section 921.30 of the Ohio Revised Code (ORC) , this letter is to advise you that the Pesticide & Fertilizer Regulation Section found that you were operating in violation of the Ohio Pesticide Law. Specifically, you have engaged in acts in violation ofORC 921.24 by applying a pesticide inconsistently with its labeled directions for use and by applying a pesticide at such a time or in such a manner as to cause damage or contaminate an adjacent property.
ORC 921.24(A) states that no person shall use a pesticide in a manner inconsistent with its label language.ORC 921.24(Q) states that no person shall refuse or fail to comply with this chapter, the rules adopted thereunder.Ohio Administrative Code (OAC) 901:5-11-02(B)(8) states that no person shall apply pesticide to an area or a crop in such a manner or at such a time that adjacent crops, pasture land, water or other areas will be damaged or contaminated. A complaint was filed with ODA on June 14, 2018, by Seth Meranda regarding your pesticide application to a neighboring agricultural field. During our investigation, ODA reviewed the labels of the products you applied to the field in question. The label for Weedar 64 specifically states do not apply at wind speeds greater than 15 mph and only apply this product if the wind direction favors on target deposition and there are not sensitive areas within 250 feet downwind. Local weather stations reported that the wind speed was greater than 15 mph during your application. Visual observations and weather data confirm that there were sensitive areas within 250 feet downwind of your pesticide application. Therefore, you have violatedORC 921.24(A) . Samples were collected from the Meranda property and testified positive for the pesticides that you applied to the field in question. Therefore you have violatedORC 921.24(Q) by failing to comply withOAC 901:5-11-02(B)(8) .Pursuant to the above and
ORC 921.30 , ODA has issued this Notice of Warning. You are hereby instructed to make all pesticide applications in compliance with their labeled directions and to only apply pesticides at such a time or in such a manner, as to avoid damaging or contaminating adjacent properties. [Bold sic.]
{¶ 20} Martin disputed the accuracy of the ODA‘s findings in the foregoing Notice of Warning letter. When deposed in May 2020, he maintained that the wind speeds were not greater than 15 m.p.h. at the time he sprayed the Bulow soybean field. However, he acknowledged that he was not checking the Weather Channel app during his chemical application. As for the direction the wind was blowing out of, Martin contended that though his Weather Channel app had stated west, he had written “west” on the Spray Order form, and the weather data the ODA had examined during its investigation indicated west (i.e., “bearing 300 [degrees]“), he nonetheless believed the wind had been coming out of
{¶ 21} During his deposition, Martin stated he was unsure of the size of the buffer zone between the Bulow soybean field and the grapevines planted in Block D of Seth‘s home. When questioned about whether there was a 250-foot buffer zone between the two, Martin responded, “I can‘t be a hundred percent accurate on that.” At one point, he estimated that the buffer zone between the soybean field and the vineyard was “over 150 [feet].”7 A map created by the ODA indicated that at the narrowest point of the triangular shaped buffer zone separating the Bulow soybean field and the Block D grapes on Seth‘s property, there was only 114 feet of separation.
II. PROCEDURAL HISTORY
{¶ 22} On April 16, 2019, the Merandas filed a complaint against Cherry Fork and Martin (collectively, “appellees“), setting forth causes of action for negligence, negligence per se, trespass, nuisance, strict liability, and negligent hiring, supervision, and training relating to Martin‘s application of the herbicides. The Merandas argued appellees violated
{¶ 23} The parties engaged in discovery. During the discovery process, the Merandas
{¶ 24} In April 2022, appellees moved for summary judgment on all of the Merandas’ claims. Appellees claimed that the Merandas could not prevail on their negligence-based claims because they had knowingly assumed the risk of damage to the vines when Seth directed appellees to proceed with the May 10, 2018 herbicide spray despite the weather conditions and the fact that his grapes had already experienced budbreak. Appellees further contended that the Merandas could not prevail on their negligence-based claims because they had failed to identify an expert who was qualified to testify about the standard of care a commercial applicator owed in the spraying of herbicides to a field adjacent to grapevines.
{¶ 25} As for the Merandas’ negligence per se claim, appellees argued that the Merandas could not demonstrate that Martin violated statutory law, specifically
{¶ 26} As for the Merandas’ trespass and nuisance claims, appellees argued the Merandas could not establish that appellees intentionally caused the herbicides to drift onto the nearby grapevines. Appellees contended that there was no evidence that the application of the herbicides constituted abnormally dangerous conduct or that Martin was negligent or reckless in his application of the herbicides. As for the Merandas’ claim that Cherry Fork was liable for the negligent hiring, supervision, and training of Martin, Cherry Fork contended that the claims failed as the Merandas could not prove that Martin was incompetent or that Cherry Fork knew of his incompetency.
{¶ 27} Finally, appellees argued that the Merandas could not recover damages for emotional distress as they had not pled a cause of action for intentional or negligent infliction of emotional distress. As for the other damages the Merandas sought, appellees contended the Merandas could not recover loss profits, loss of overall market reputation, or damages for the value to the goodwill or brand of the winery as the winery was not a proper party to the case. Instead, appellees argued the Merandas were limited to seeking damages for the costs of the reasonable restoration of the grapevines to their preexisting condition or to a condition as close as reasonably feasible, without requiring grossly disproportionate expenditures and with allowance for the natural process of regeneration within a reasonable period of time. Finally, appellees argued the Merandas’ claims for punitive damages and treble damages failed as there was no evidence of actual malice or recklessness by Martin or Cherry Fork.
{¶ 28} In support of their motion for summary judgment, appellees attached Seth‘s and Martin‘s answers to interrogatories, deposition testimony from Maura and Seth Meranda, from Cherry Fork‘s office manager Michelle Meranda, and from Martin, and various exhibits used during their depositions, including a map
station at the Clermont County Airport from May 10 and 11, 2018 and June 3 and 8, 2018; a Statement of Revenues Lost from the winery; and two reports, dated April 1, 2021 and February 1, 2022, from appellees’ expert Keith A. Hock, a certified public accountant, certified financial forensics analyst, and certified valuation analyst.
{¶ 29} The Merandas filed a memorandum in opposition to summary judgment in which they conceded that summary judgment was appropriate on their strict liability claim, but argued that genuine issues of material fact existed on their remaining claims and requests for damages. With respect to their negligence claim, the Merandas argued that an expert was not necessary to establish the standard of care owed in this case as the jury was capable of understanding that the herbicide labels were supposed to be followed. Alternatively, even if an expert was required, the Merandas argued that Mathers qualified given her experience as a chemical applicator and the fact that she once held a commercial applicator license. The Merandas also argued that the doctrine of primary assumption of the risk did not apply to their negligence-based claims and, with respect to the doctrine of implied assumption of the risk, genuine issues of fact existed as to whether they consented to or acquiesced in an appreciated or known risk. The Merandas argued they had no knowledge that Martin would not comply with the product labels when applying the herbicides or that the weather conditions were adverse on May 10, 2018.
{¶ 30} As for their negligence per se claim, the Merandas argued the ODA‘s August 15, 2018 Notice of Warning letter was evidence that Martin violated
{¶ 31} With respect to their trespass and nuisance claims, the Merandas contended that issues of fact existed as to whether Martin‘s conduct in spraying the herbicides in windy weather was negligent, reckless, or unreasonable. They further argued that issues of fact existed as to Cherry Fork‘s negligent hiring, supervision, and training of Martin, as Mathers’ had
{¶ 32} Finally, with respect to the treble and punitive damages they were seeking, the Merandas argued genuine issues of material fact existed as to whether Martin acted recklessly or with actual malice by knowing of the weather conditions and consciously disregarding those risks by spraying anyways. They also argued that in addition to recovering damages for the value of the damaged grapevines, they were also entitled to recover damages for the emotional distress they suffered and for the decreased production and loss profits suffered by the winery.
{¶ 33} To support their arguments in opposition of summary judgment, the Merandas relied on appellees’ answers to interrogatories, deposition testimony from Seth, Maura, Michelle, Martin, and Mathers, and certain exhibits used during those depositions, including the May 11, 2019 Spray Ticket for Seth‘s home farm and a map of Seth‘s farm. Also attached to the Merandas’ memorandum in opposition to summary judgment were documents that were not included as deposition exhibits and were not attached to an affidavit. These documents included selective pages from a December 1, 2020 report from Mathers, a table entitled “Production History of Meranda-Nixon Winery,” and a November 25, 2020 report from their expert Pavlis.
{¶ 34} Appellees filed a reply memorandum in support of their motion for summary judgment, once again arguing that the Merandas had assumed the risk of damage to their grapevines by requesting a chemical burndown of the neighboring soybean field after budbreak on the vines. Appellees contended the evidence demonstrated Seth specifically requested the use of Authority XL, Roundup PowerMax, and Weedar Amine (2,4-D) on the soybean field and he authorized the spraying of the field on May 10, 2018 with knowledge of the weather conditions. They continued to maintain that Mathers, a horticulturalist, was not qualified to provide expert testimony of the standard of care of a commercial applicator, and that wind data utilized from the Clermont County Airport was irrelevant and unreliable in establishing wind conditions at the Bulow soybean field. Finally, with respect to the ODA‘s August 15, 2018 Notice of Warning letter indicating appellees had violated
{¶ 35} On September 1, 2022, appellees’ motion for summary judgment was granted in part and denied in part by a magistrate. The magistrate found summary judgment was appropriate on the Merandas’ strict liability claim and claim for emotional distress damages, but found that material issues of fact remained on the Merandas’ claims for “1) Negligence; 2) Negligence per se; 3) Nuisance; 4) Negligent hiring, supervision and training; 5) Punitive damages claim * * *; 6) Compensatory damages claim * * *; [and] 7) Treble damages claim.” With respect to these claims, the magistrate stated, “it is obvious that many of the material facts of this case are in dispute. The Court cannot weigh
{¶ 36} Appellees filed timely objections to the magistrate‘s decision, contending, among other things, that the magistrate erred in relying on the “flawed” June 28, 2018 ODA Case Investigation Report to create issues of fact as the report constituted inadmissible hearsay and relied on irrelevant wind data from an airport located nearly 30 miles away from the location of the herbicide spray. Appellees also argued the magistrate erred in finding that issues of fact remained on the Merandas’ negligence-based claims and claims for punitive and treble damages as the Merandas failed to identify an expert qualified to testify about the standard of care owed by a commercial applicator and the type of damages that would result from a breach of that standard of care. They further argued the evidence they submitted demonstrated the Merandas’ claims were barred by the assumption-of-the-risk doctrine as Seth requested application of the herbicides on the soybean field after budbreak and with knowledge of the weather conditions on May 10, 2018.
{¶ 37} The Merandas did not file a response to appellees’ objections to the magistrate‘s decision. On November 15, 2022, the trial court requested additional briefing from the parties. On December 19, 2022, after receiving the additional briefing, the trial court issued a decision sustaining appellees’ objections and entering summary judgment for appellees on all of the Merandas’ claims. The court found “as a matter of law that the wind speed 30 miles away is irrelevant to the proof of claims herein for negligence; negligence per se; nuisance; and negligent hiring, supervision and training.” The court further found that “[c]ontrary to the argument of the [Merandas], it is necessary to have expert testimony to establish the causal connection between the actions or inactions of the defendants and the claims of negligence and negligence per se.” The court stated:
[The Merandas‘] expert Hannah Mathers formed her opinion solely upon the flawed hearsay report of the ODA. [The Merandas‘] expert does not hold a commercial applicator‘s license and she admitted she had never worked as an expert on a case involving herbicide drift into grapevines. [The Merandas] failed to provide ODA investigator Zachary Weber‘s CV to even qualify his testimony contained in the ODA report pertaining to the standard of care of a commercial applicator. This renders the report‘s findings inadmissible hearsay.
[Appellees‘] expert Dr. William Witt, an expert in crop science, with specific experiences conducting research on herbicidal weed control and cropping sites explicitly opined that “winds were tolerable and accepted speeds for purposes of Mr. Martin‘s [May 10, 2018] application.” He opined that “the fact that drift occurs does not mean that there was any negligence or wrongdoing on the part of the commercial applicator” and that “Cherry Fork Farm Supply and Kyle Martin acted reasonably and appropriately and within reasonable accepted standards of care at all times.” * * * [Appellees‘] expert, Matt Doyle, who is a managing member and owner of Doyle Vineyard Management, opined that defendant Martin‘s procedure for monitoring the wind conditions was appropriate and within the standard of care utilized by commercial spray operators. * * * Thus, there is no issue of material fact
as to whether defendants breached the standard of care. They did not. * * *
There was lack of evidence as to causation. [The Merandas] failed to produce any records of the sprays that they themselves completed. It is undisputed that adjacent property owners applied chemicals to their crops in the days between the date of the alleged incident, May 10, 2018, and the time plaintiffs reported any damage to the ODA on June 14, 2018.
* * *
{¶ 38} The court further determined that there was “no viable” claim for trespass and that the Merandas failed to put forth any evidence of recklessness on the part of appellees to support a claim for nuisance. With respect to the Merandas’ claim that Cherry Fork was negligent in hiring, supervising, and training Martin, the court found that Mathers was not qualified to attest to Martin‘s training or competence. The court further found that the Merandas had not provided evidence that Cherry Fork had any knowledge of Martin‘s purported incompetence. Finally, the court entered summary judgment in favor of appellees on the Merandas’ requests for punitive damages, treble damages, and compensatory damages.
III. APPEAL
{¶ 39} The Merandas timely appealed the trial court‘s decision, raising the following as their sole assignment of error:
{¶ 40} THE TRIAL COURT IMPROPERLY GRANTED SUMMARY JUDGMENT TO APPELLEES.
{¶ 41} Within their assignment of error, the Merandas argue that the trial court “made multiple errors of law” and ignored evidence demonstrating that genuine issues of material fact exist on their negligence, negligence per se, nuisance, trespass, and negligent hiring, supervision, and training claims, as well as their requests for punitive and treble damages. The Merandas do not challenge the trial court‘s finding that Mathers was not qualified to opine on the standard of care owed by a licensed commercial applicator, but do challenge the trial court‘s finding that expert testimony was needed to establish duty and breach for their negligence-based claims. They further challenge the trial court‘s decision to disregard the weather data obtained from the Clermont County Airport and the ODA‘s June 28, 2018 Case Investigation Report.
A. Standard of Review
{¶ 42} “An appellate court‘s examination of a trial court‘s decision to grant summary judgment is subject to de novo review.” French v. New Paris, 12th Dist. Preble No. CA2010-05-008, 2011-Ohio-1309, ¶ 17, citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). De novo review means that this court uses the same standard
that the trial court should have used and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial. Morris v. Dobbins Nursing Home, 12th Dist. Clermont No. CA2010-12-102, 2011-Ohio-3014, ¶ 14.
{¶ 43}
{¶ 44} The party moving for summary judgment bears the initial burden of demonstrating that no genuine issue of material fact exists. Touhey v. Ed‘s Tree & Turf, LLC, 194 Ohio App.3d 800, 2011-Ohio-3432, ¶ 7 (12th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Once this burden is met, the nonmoving party “‘must then rebut the moving party‘s evidence with specific facts showing the existence of a genuine triable issue; it may not rest on the mere allegations or denials in its pleadings.‘” Oliphant v. AWP, Inc., 12th Dist. Butler No. CA2019-02-036, 2020-Ohio-229, ¶ 31, quoting Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7, citing
B. Preliminary Matters
{¶ 45} Prior to addressing the Merandas’ argument that summary judgment was improperly awarded to appellees, we find it necessary to discuss a few evidentiary issues that will impact our analysis of the summary judgment motion.
1. Civ.R. 56(C) Evidence
{¶ 46} ”
{¶ 47} “‘In general, no evidence or stipulation may be considered in ruling on a summary judgment motion except as stated in
{¶ 48} In
2. ODA‘s June 28, 2018 Case Investigation Report
{¶ 49} The ODA‘s June 28, 2018 Case Investigation Report was attached to appellees’ motion for summary judgment. Appellees presented the document and argued that it could not be relied upon by the Merandas to create an issue of fact as to any of their claims as the report (1) constituted an inadmissible hearsay document and (2) utilized irrelevant and “unreliable” weather data from the Clermont County Airport, which was located nearly 30 miles away from the site of the herbicide application. The trial court agreed with appellees’ arguments, referring to the report as a “flawed hearsay report” and finding information set forth in the report regarding wind speed at the Clermont County Airport “irrelevant to the proof of claims herein for negligence; negligence per se; nuisance; and negligent hiring, supervision, and training.” The Merandas dispute that the report is inadmissible and contend that the weather data was relevant to demonstrating that Martin sprayed herbicides in wind conditions that exceeded 15 m.p.h. in violation of the herbicide labels.
{¶ 50} “Hearsay statements, i.e., statements other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted, are not admissible evidence in a summary judgment context unless an exception to the rule applies.” Koop v. Speedway SuperAmerica, L.L.C., 12th Dist. Warren No. CA2008-09-110, 2009-Ohio-1734, ¶ 11, citing
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.
{¶ 51} The June 28, 2018 Case Investigation Report was an investigative report authored by ODA Investigator Weber. As investigative reports do not fall within the exception set forth in
{¶ 52} Furthermore, in addition to containing investigative statements from Weber, the report sets forth statements made by other individuals. Specifically, the report includes statements from Seth, Michelle, Jerome Meranda, and Joshua Fussnecker about what herbicides were sprayed on various properties and when the various herbicide applications occurred. “‘[N]either subdivision (a) or (b) of [Ohio Evidence]
3. Weather Data from Clermont County Airport
{¶ 53} The ODA‘s June 28, 2018 Case Investigation Report set forth weather data for Martin‘s May 10, 2018 application of the Bulow soybean field. This information was obtained from the weather station located at the Clermont County Airport. The trial court found that weather data indicating “wind speed 30 miles away” from the site of the herbicide application was, as a matter of law, “irrelevant.” The Merandas challenge this finding.
{¶ 54} We first note that the weather data set forth in the ODA‘s June 28, 2018 Case Investigation Report is not properly before this court as the report was excluded as inadmissible hearsay. The question then becomes whether there is weather evidence independent of the June 28, 2018 Case Investigation Report that was submitted in support or in opposition to appellees’ motion for summary judgment. We find that there was. In addition to the ODA‘s August 15, 2018 Notice of Warning Letter stating that “[l]ocal weather stations reported that the wind speed was greater than 15 mph during [Martin‘s] application,” there was also weather data from the NOAA presented for the weather station at the Clermont County Airport. The NOAA weather data was submitted by appellees, in an effort to challenge Weber‘s investigatory findings in the June 28, 2018 Case Investigation Report. The weather data obtained from the NOAA set forth the local climatological data and hourly observations for the weather station at the Clermont County Airport. The following chart sets forth the relevant data as it relates to Martin‘s May 10, 2018 herbicide application of the Bulow soybean field, which began at 12:32 p.m. and ended at 1:34 p.m.:
| TIME | WIND SPEED (m.p.h.) | WIND DIRECTION (Degree) | WIND GUSTS (m.p.h.) |
|---|---|---|---|
| 12:17 p.m. | 14 | 270 | 23 |
| 12:36 p.m. | 16 | 300 | 22 |
| 12:57 p.m. | 14 | 300 | 24 |
| 1:17 p.m. | 11 | VRB [variable] | 24 |
| 1:36 p.m. | 11 | 290 | 22 |
{¶ 55} We find that the trial court erred in holding that the weather data from the Clermont County Airport weather station was, as a matter of law, irrelevant. What the wind conditions were like at the time of appellees’ herbicide application to the Bulow soybean field is an issue of fact, not one of law. The weather conditions at the Clermont County Airport, the closest airport to the Bulow soybean field and Seth‘s home farm, provided an approximation of what the wind conditions were like at the soybean field at the time of appellees’ herbicide application. See, e.g., Springer v. United States, 641 F.Supp. 913, 921 (D.S.C.1986) (finding that surface
4. Expert Mathers
{¶ 56} The trial court found Mathers was not qualified to give an expert opinion on the standard of care owed by a commercial applicator as she “does not hold a commercial applicator‘s license and * * * had never worked as an expert on a case involving herbicide drift onto grapevines.” The court further found that her opinion was premised “solely upon the flawed hearsay report of the ODA.” The court, therefore, disregarded her expert report and deposition testimony in its entirety.
{¶ 57} The Merandas did not assign as error the trial court‘s determination that Mathers was not qualified to opine on the standard of care owed by a commercial applicator. As such, we will not revisit this holding by the trial court. However, we do find it necessary to discuss whether Mathers’ opinion must be disregarded in whole, or whether she is qualified to opine on the type of damages the grapevines sustained and the cause of such damages.
{¶ 58}
{¶ 59} In her curriculum vitae (“C.V.“) and her deposition testimony, Mathers set forth and discussed her specialized knowledge, experience, education, and training as it related to herbicidal weed control and the effects various herbicides have on different types of crops and trees.13 Mathers has a doctorate degree and Masters of Science degree in horticulture, a Bachelor
{¶ 60} Though Mathers did not have a current Ohio commercial applicator‘s license, she previously held one that she let lapse in either 2016 or 2019. However, she only used her commercial applicator‘s license once, when conducting an application at an Ohio nursery. Though Mathers used her commercial applicator license in a limited manner, she routinely sprayed herbicides as a private applicator at commercial properties. She estimated that for the past eight years, she has spent over 150 hours a year applying pesticides to fields commercially.
{¶ 61} Mathers indicated she has been involved in several cases where there was 2,4-D drift onto crops, though she acknowledged during her deposition that this is the first case she had been involved in where there were allegations of pesticide drift onto grapevines. Prior to inspecting the Merandas’ vineyard for herbicide-drift damage, she had inspected three vineyards in Michigan when she was conducting “cold-hardiness studies.” She indicated the scope of her knowledge with respect to the impact of 2,4-D drift onto grapevines was based on literature review, her knowledge of grapes, viticulture, chemistry, biochemistry, and stress physiology. She explained that where grapevines are exposed to 2,4-D, one would see damage consisting of [p]uckering of the leaves. A cupping of the leaves, chlorosis as mainly marginal and to the apex. Particularly damage in integral growing regions, the meristems, that would include the fruiting bunches, abortion therefor of the fruit in the bunch, lack of ability to color. Let me see, molted growth, strap-like growth.
{¶ 62} When deposed, Mathers testified she visited the Merandas’ vineyard in August 2019 to inspect the grapevines, which was almost 16 months after Martin‘s May 10, 2018 herbicide spray. In addition to taking photographs of the damaged vines, Mathers also took random samples of the grapevines for testing. She relied on her own inspection of the grapevines, information set forth in the ODA‘s June 28, 2018 Case Investigation Report regarding spray records from properties surrounding the Merandas’ vineyard, reviewed Martin‘s and Michelle‘s depositions, and looked at weather data relating to the May 10, 2018 spray in forming her opinion as to the cause of the damage to the Merandas’
Extensive damage was done [to] Meranda-Nixon Winery due to drift on May 10, 2018. Conditions, spray label violations and damages are well documented in this report. In this report we found that the effects of the 2,4-D drift in 2018, and based on the literature and nature of the chemicals applied and my site inspection, [it] has continued into 2019, and will continue into 2020 and beyond. Evidence of 2,4-D injury and carryover is significant. Furthermore, 2,4-D has been linked to reproductive injury (Hatterman-Valenti, 2005). The reduction in flower potential will further decline the salability of Meranda Nixon wines. Mr. Martin had numerous label violations, and weather conditions promoted drift on a sensitive crop. Despite all the warnings, Mr. Martin, applied his tank mix o[f] 2,4-D and glyphosate, perhaps only looking at those sections pertinent to killing the weeds he wanted to kill. In doing so he acted * * * with no respect for the high value or Mr. Meranda‘s crop, the long-term consequence losing such a crop would entail, loss of reputation, and after-effects on the vineyard and the Meranda‘s [sic] income.
Subsequent to her written report, Mathers reviewed expert reports from appellees’ experts Witt and Doyle. She also reviewed photographs taken in August 2021 of the Merandas’ grapevines. Nothing she reviewed after authoring her December 2020 report caused her to revise her determination that the Merandas’ grapevines were damaged as a result of Martin‘s May 10, 2021 herbicide application.
{¶ 63} We find that the trial court erred in completely disregarding Mathers’ opinion. The record does not support the trial court‘s finding that “Mathers’ formed her opinion solely upon the flawed hearsay report of the ODA.” As set forth above, Mathers formed her opinion as to the cause of the damage to the Merandas’ grapevines using more than just the ODA‘s June 28, 2018 Case Investigation report. She inspected the grapevines herself, took samples of the vines, reviewed Martin‘s and Michelle‘s deposition testimony, examined weather data, and considered herbicide applications that took place near Seth‘s property.
{¶ 64} Appellees sought to discredit Mathers’ opinion by arguing that she failed to review all the pertinent information in the case. Appellees pointed out Mathers did not review Seth‘s and Maura‘s deposition testimony, did not view the exhibits utilized during Martin‘s deposition testimony, and did not examine the May 10, 2018 spray order form completed by Martin. While these omissions go to the weight a factfinder may give her testimony or opinion as to the cause of the damages sustained by the Merandas’ grapevines, they do not prevent Mathers’ from offering a qualified expert opinion as to the cause of the damages.
{¶ 65} Accordingly, given Mathers’ specialized knowledge, experience, training, and education in the field of herbicides and the effects of herbicide drift, we find that she is qualified to provide an expert opinion regarding those topics. Mathers’ testimony clearly relates to matters beyond the knowledge or experience possessed by lay persons and, contrary to the trial court‘s finding, was based on reliable scientific, technical, or other specialized information. Therefore, where appropriate, we shall consider her deposition testimony and expert report in examining whether summary judgment was appropriately entered in appellees’ favor on the Merandas’ claims.
C. The Merandas’ Causes of Action & Damage Requests
1. Negligence and Negligence Per Se
{¶ 67} The Merandas contend the trial court erred in granting summary judgment to appellees on their negligence and negligence per se claims. They argue the trial court “wrongly concluded that expert testimony was needed to establish duty and breach” and further contend that their claims are not barred by the doctrine of assumption of the risk.
{¶ 68} Negligence and negligence per se are closely intertwined concepts. Arnett v. Mong, 12th Dist. Fayette No. CA2015-10-022, 2016-Ohio-2893, ¶ 8. “To establish a negligence claim, the plaintiff must demonstrate (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached the duty of care, and (3) as a direct and proximate result of the defendant‘s breach, the plaintiff was injured.” Oliphant, 2020-Ohio-229 at ¶ 32. “A plaintiff‘s inability to prove any one of these elements is fatal to his or her claim of negligence.” Id..
{¶ 69} With negligence per se, proof of a violation of a statute that sets forth specific duties “dispenses with a plaintiff‘s burden in a simple negligence case of proving the existence of a duty and breach of that duty.” Allstate Ins. Co. v. Henry, 12th Dist. Butler No. CA2006-07-168, 2007-Ohio-2556, ¶ 10. See also Swader v. Paramount Property Mgt., 12th Dist. Butler No. CA2011-05-084, 2012-Ohio-1477, ¶ 22 (violation of a statute that sets forth specific duties constitutes negligence per se). “[W]hile proof that a defendant violated a statute setting forth specific duties extinguishes the plaintiff‘s burden to establish the existence of a duty and the breach of that duty, negligence per se does not dispense with a plaintiff‘s obligation to prove that the defendant‘s breach was the proximate cause of the injury complained of.” Capella v. Historic Developers, LLC, 12th Dist. Butler No. CA2017-07-109, 2018-Ohio-546, ¶ 43. After all, “[n]egligence per se and strict liability * * * are not synonymous.” Sikora v. Wenzel, 88 Ohio St.3d 493, 495 (2000). “Courts generally agree that violation of a statute will not preclude defenses and excuses—i.e., strict liability—unless the statute clearly contemplates such result.” Id. at 496. “[N]egligence per se and strict liability differ in that a negligence per se statutory violation may be ‘excused.‘” Id. at 497.
{¶ 70} The parties are in disagreement over whether expert testimony is necessary to establish the Merandas’ negligence and negligence per se claims. However, the supreme court has already answered the question of when expert testimony is needed. “In a negligence action involving conduct within the common knowledge and experience of jurors, expert testimony is not required.” Berdyck v. Shinde, 66 Ohio St.3d 573, 581 (1993). Conversely, where a negligence action involves the skill and judgment of a licensed professional or relates to information outside the knowledge of a layperson, expert testimony is required. See id.;
{¶ 71} To the extent the Merandas seek to establish Martin was negligent in the manner he monitored wind conditions before and during his spray of the herbicides on May 10, 2018, we find that expert testimony regarding the industry
{¶ 72} The Merandas seek to establish appellees’ negligence for their violation of
No person shall do any of the following:
(A) Apply, use, directly supervise such application or use, or recommend a pesticide for use inconsistent with the pesticide‘s labeling, treatment standards, or other restrictions imposed by the director of agriculture.
* * *
(Q) Refuse or fail to comply with this chapter, the rules adopted thereunder, or any unlawful order of the director.
An herbicide is classified as a pesticide pursuant to
{¶ 73}
(B) No person shall:
Use a pesticide except in accordance with the label which is registered with the Ohio department of agriculture, or in accordance with sections 5, 18, 24(c) of the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136-136y (2012) and the rules adopted thereunder.
* * *
(4) Permit any person to mix or load pesticides in an area where the light, whether natural or artificial, is insufficient to read the pesticide label and work in a safe manner.
* * *
(6) Operate equipment for the application of pesticides, including such auxiliary equipment as hoses and metering devices in such conditions or in such a manner as to result in leakage, spillage, dripping, backflow, vapors, or drift.
* * *
(8) Apply pesticide to an area or crop in such a manner or at such a time that adjacent crops, pasture land, water or other areas will be damaged or contaminated.
“The violation of an administrative rule does not constitute negligence per se.” Chambers v. St. Mary‘s School, 82 Ohio St.3d 563 (1998), syllabus. “[H]owever, such a violation may be admissible as evidence of negligence.” Id..
{¶ 74}
{¶ 75} To the extent the Merandas seek to establish that Martin violated
{¶ 76} Having reviewed the evidence submitted in support and opposition to appellees’ motion for summary judgment, we find that the trial court erred in entering summary judgment in favor of appellees on the Merandas’ negligence per se claim. The Merandas introduced evidence establishing that genuine issues of material fact exist as to every element of their negligence per se claim.
{¶ 77} First, regarding the duty and breach elements—which are satisfied if the Merandas can show a violation of
{¶ 79} Appellees’ experts disagreed with the Merandas’ experts about the extent and cause of damage to the grapevines. Though appellees’ experts conceded there was “some minimal damage to Block D” (Doyle) or that “some portions of the vines in Blocks C and D on [the Merandas‘] property may have sustained some injury in 2018, potentially from herbicide drift and possibly from 2,4-D and/or Glyphosate” (Witt), the experts indicated the damages could have been caused by the Merandas’ mismanagement of the vineyard or other herbicide applications. Witt opined in his April 1, 2021 report that “visual evidence suggests that Block C showed no damage in 2019 and Block D showed only minor residual injury, if any, although much improved from the 2018 growing season. Also, it is worth noting that there can be many other reasons for reduced growth/yield of [the Merandas‘] grapes which have not and cannot be ruled out such as other herbicide applications, weather conditions, weeds, poor maintenance, etc.” Witt further opined that “there is no evidence of any long-lasting, permanent or irreversible damage to any of [the Merandas‘] vines based on any drift exposure from Kyle Martin‘s applications on May 10/11, 2018.” He stated there was “no visible evidence available of any vine/grape damage” to the Merandas’ property during the 2020 growing season and as
{¶ 80} In August 2021, Witt visited the Merandas’ vineyard and took samples of grape specimens from Blocks C and D. He issued a report on January 25, 2022 opining that “grape plants appeared to be growing normally and any impact from the 2018 event was not evident.” Witt observed leaf malformation, which symptoms included neurotic spots, galls on leaves, and malformed leaves. Though the lab that tested the leaves could not determine what caused the leaves foliar distortion, the lab indicated it could have been caused by environmental factors, exposure to certain growth regulator chemicals, or the grapevine fanleaf virus. Witt indicated his belief that the leave malformations were “more likely caused by the grapevine fanleaf virus” than 2,4-D since “no 2,4-D was applied on the vineyard or near the vineyard in 2020 to [his] knowledge.” He did not expound on whether the leaves could be malformed as a result of exposure from 2,4-D sprayed in 2018.
{¶ 81} Doyle suggested the damage caused to the Merandas’ vineyard was caused through the Merandas’ own improper applications of herbicides during 2016 and 2017. He stated, “[t]he [Merandas‘] spray records suggest chemicals were often applied to their vines in a manner that was inappropriate and/or off-label. It should be noted that the improper application of herbicides in the vineyard in 2016 or 2017 may not appear as injury to the vines until 2018.” From his examination of photographs of the Merandas’ vineyard taken in 2021, he observed “a host of problems in the vineyard that appear to be unrelated to 2,4-D and/or glyphosate,” and identified a number of diseases that could be responsible for the damage to the grapevines, such as downy mildew, Leaf Roll Virus,
Phomopsis, Eutypa Dieback, and North American Grapevine Yellows. He also indicated that the vineyard “show[ed] a tremendous amount of weed pressure, which will weaken vines and can cause long term damage. Vineyards can also have inherent damage from spring frost, winter cold, or even hail. The damage from any of these events can damage vines or cause death.”
{¶ 82} Neither Witt nor Doyle observed any long-lasting or permanent 2,4-D damage at the Merandas’ vineyard and both opined that there was no evidence to suggest that the Merandas’ vines needed to be replaced or replanted as a result of drift exposure from Martin‘s herbicide applications on May 10 or 11, 2018.
{¶ 83} Given the conflicting expert opinion as to the cause and severity of the damage to the Merandas’ grapevines, summary judgment on the issue of causation was inappropriate. In entering judgment in favor of appellees and concluding that “there was lack of evidence as to causation,” the trial court appeared to weigh evidence in appellees’ favor and to ignore evidence offered by the Merandas. The court found the Merandas’ “failed to produce any records of sprays that they themselves completed.” While the Merandas’ had no written record of the herbicides they personally sprayed, Seth testified that between 2006 and 2017, he sprayed “either Surflan, Prowl, and Roundup or Glyphosate on those, Roundup brand. That would have been maybe Chateau also.” He indicated he applied herbicides “pre-budbreak” and in accordance with the herbicide labels. He later indicated that prior to
{¶ 84} The trial court further found there was a “lack of evidence as to causation” because “adjacent property owners applied chemicals to their crops in the days between the date of the alleged incident, May 10, 2018 and the time [the Merandas] reported any damage to the ODA on June 14, 2018.” The only evidence offered by appellees indicating that adjacent property owners Jerome Meranda and Joshua Fussnecker conducted chemical sprays of their respective properties prior to Seth contacting the ODA to report drift damage was derived from the ODA‘s inadmissible June 28, 2018 Case Investigation Report. For the reasons discussed above, we will not consider such evidence.17
{¶ 85} However, even if we were to consider the information set forth in the ODA‘s June 28, 2018 Case Investigation report about Jerome Meranda‘s and Joshua Fussnecker‘s herbicide sprays, we find that it does not preclude the Merandas from demonstrating that appellees’ earlier application, the May 10, 2018 herbicide application, caused damages. Deposition testimony from Seth indicated that (1) he first noticed herbicide damage on May 11, 2018 when giving a customer a tour of the vineyard, (2) he contacted Cherry Fork about the damage and to request information on what herbicides had been used shortly after noticing the damage, and (3) ODA director Daniels discussed the spray damage with Seth on May 29, 2018 after touring Blocks C and D. These events occurred before Fussnecker and Jerome Meranda completed their herbicide applications, and provide some support for the Merandas’ claim that it was Martin‘s herbicide application that caused the damage to their grapevines. Accordingly, we find that whether appellees’ May 10, 2018 herbicide spray, the subsequent herbicide applications of neighboring farms, or the Merandas’ own actions in the management of the vineyard, or a combination of these things, caused damage to the Merandas’ grapevines is an issue of fact that cannot be decided on summary judgment.
{¶ 86} We further find, contrary to appellees’ assertions, that the doctrines of primary assumption of the risk and implied assumption of the risk do not apply to bar the Merandas’ negligence per se claim or their other negligence-based claims.
{¶ 87} “Assumption of [the] risk is a measure of the defendant‘s duty of care.” Bennett v. Biernacki, 12th Dist. Warren No. CA2022-05-030, 2022-Ohio-4449, ¶ 12. “[P]rimary assumption of [the] risk, when applicable, prevents a plaintiff from establishing the duty element of a negligence case and so entitles a defendant to judgment as a matter of law.” Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 433 (1996). See also Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 18 (“Primary assumption of the risk means that a defendant owes no duty whatsoever to the plaintiff“). The primary-assumption-of-the-risk doctrine “rests on the fiction
{¶ 88} “In contrast, implied assumption of [the] risk occurs when a person consented to, or acquiesced in an appreciated or known risk.” French v. New Paris, 12th Dist. Preble No. CA2010-05-008, 2011-Ohio-1309, ¶ 34. The defense of implied assumption of the risk has been merged with the defense of contributory negligence and does not operate as a complete bar to recovery. Id., citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. Franklin No. 07AP-696, 2008-Ohio-1421, ¶ 11. See also Anderson v. Ceccardi, 6 Ohio St.3d 110, 113 (1983). “Under an implied assumption of the risk analysis, some duty is found to exist on the part of the defendant and a court is permitted to utilize comparative fault principles to determine what, if any, recovery to which the plaintiff may be entitled.” French at ¶ 34. Where there are “attendant circumstances that raise questions of fact [about] whether an injured party assumed the risk in a particular situation * * * the doctrine of implied assumption of [the] risk, not primary assumption of [the] risk would be applicable.” Gallagher, 74 Ohio St.3d at 432.
{¶ 89} Appellees argue primary assumption of the risk applies because Seth requested a burndown of the soybean field despite having “full knowledge of the danger of burning down the soybean field ‘directly behind’ his grapevines,” he requested that the specific herbicides Weedar Amine (2,4-D), Roundup PowerMax, and Authority XL be used, he asked for the spray to occur after budbreak, when his grapevines were more susceptible to damage, and he gave the approval for the spray to occur on May 10, 2018 after speaking with Michelle about the wind conditions. They further argue that herbicide drift is inherent in every herbicide application and point to statements from Seth, Pavlis, and Witt in support of this claim.
{¶ 90} When deposed, Seth acknowledged that when herbicides are sprayed outside, there is a risk of drift because of wind. Pavlis acknowledged that with respect to 2,4-D, there is a risk of drift, even when there is no wind. Finally, Witt stated in his April 1, 2021 report that “[h]erbicide drift is an inherent and often unavoidable risk to herbicide spray applications and can occur under a wide variety of circumstances.” Witt did not expound on the circumstances where herbicide drift can be avoided or the circumstances where drift was more likely to occur in his report. Likewise, when deposed, Pavlis was not asked to expound on his acknowledgement that 2,4-D can drift with no wind, though he seemed to suggest a higher temperature played a part in whether 2,4-D drifts.18
{¶ 92} Appellees’ arguments that the Merandas assumed the risk of herbicide drift relate to an implied assumption of the risk defense. Appellees suggest that the Merandas consented to, or acquiesced in an appreciated or known risk of herbicide drift as Seth asked for an herbicide application of the Bulow soybean field after budbreak had occurred of the grapevines. In the present case, factual questions exist as to whether Seth asked for the specific herbicides Weedar Amine (2,4-D), Authority XL, and Roundup PowerMax to be used in the burndown of the soybean field and whether he was informed of the wind conditions on May 10, 2018 prior to telling Michelle that Cherry Fork should move forward with the spray as “it‘s getting late enough, I need it sprayed.” If a juror were to find that Seth did request that those specific herbicides be used or find Seth requested that the spray occur after being specifically advised of gusty wind conditions and wind blowing out of the west or west-by-northwest and towards his home farm, comparative fault principles could then be used to determine what recovery, if any, the Merandas were entitled to receive. See French, 2011-Ohio-1309 at ¶ 34. However, because implied assumption of the risk involves comparative fault principles and questions of fact remain, summary judgment based on implied assumption of the risk is not appropriate. See, e.g., Oliveri v. Osteostrong, 11th Dist. Lake No. 2009-L-104, 2021-Ohio-1694, ¶ 37 (finding summary judgment based on implied assumption of the risk was not warranted where questions of fact remained); Davis v. Dungeons of Delhi, 1st Dist. Hamilton No. C-180242, 2019-Ohio-1457, ¶ 41 (“Implied assumption of the risk invokes factual questions that are generally to be resolved by a jury and not by summary judgment“).
2. Trespass Claim
{¶ 94} The Merandas argue that the trial court erred in granting appellees summary judgment on their trespass claim. They contend a chemical invasion of real property is actionable as an indirect trespass and in support of their claim cite to Williams v. Oeder, 103 Ohio App.3d 333 (12th Dist.1995).
{¶ 95} “‘A common-law tort in trespass upon real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another whereby damages directly ensue.‘” Apel v. Katz, 83 Ohio St.3d 11, 19 (1998), quoting Linley v. DeMoss, 83 Ohio App.3d 594, 598 (10th Dist.1992). See also Chance v. BP Chemicals, Inc., 77 Ohio St.3d 17, 24 (1996) (“Trespass is an unlawful entry upon the property of another“). Generally, to bring a trespass claim, “a property owner must prove two essential elements: (1) an unauthorized intentional act, and (2) an intrusion that interferes with the owner‘s right of exclusive possession of [his or] her property.” Estes v. Robbins Lumber, LLC, 12th Dist. Clermont No. CA2016-02-011, 2016-Ohio-8231, ¶ 16. A landowner who has shown a tangible invasion of property is entitled to at least recover nominal damages. Oeder at 339; Olive Oil, L.L.C. v. Cleveland Elec. Illum. Co., 8th Dist. Cuyahoga No. 109553, 2021-Ohio-2309, ¶ 13. Actual damages may be recovered if the plaintiff proves the trespass proximately caused the damages for which compensation is sought and the amount of those damages. Id.
{¶ 96} In addition to direct trespass, Ohio recognizes claims of indirect trespass, which are brought when a defendant‘s actions causes a substance to intrude on the plaintiff‘s land and the substance causes substantial damages. See, e.g., Chance, 77 Ohio St.3d at 27 (recognizing a cause of action for indirect trespass but finding that plaintiffs‘-landowners’ claim relating to underground migrating injectate from a chemical refining plant was too speculative as “some type of physical damages or interference must be shown in an indirect invasion situation such as this“); Oeder at 338-339 (indirect trespass cause of action for airborne particulates); Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 716-717 (4th Dist.1993) (indirect trespass claim for particulate matters that invade a landowner‘s property); Hager v. Waste Tech. Indus., 7th Dist. Columbiana No. 2000-CO-45, 2002-Ohio-3466, ¶ 39-58 (indirect trespass cause of action for harm allegedly caused by hazardous waste storage and incineration); Colegrove v. Fred A. Nemann Co., 1st Dist. Hamilton No. C-140171, 2015-Ohio-533 (indirect trespass cause of action for construction vibrations); Lueke v. Union Oil Co., 6th Dist. Ottawa No. OT-00-008, 2000 Ohio App. LEXIS 4845 (Oct. 20, 2000) (indirect trespass cause of action for underground gasoline storage tanks that purportedly leaked into plaintiff‘s water well); Hayes v. Carrigan, 1st Dist. Hamilton Nos. C-160554, C-160630 and C-160641, 2017-Ohio-5867, ¶ 26 (indirect trespass cause of action premised upon invading weed killer); Timbuk Farms, Inc. v. Hortica Ins. & Emp. Benefits, 5th Dist. Licking No. 2021 CA 00017, 2021-Ohio-4141, ¶ 58
{¶ 97} As early as 1995, this court recognized that “the invasion of airborne particulates may interfere with a complainant‘s interest in exclusive possession and may therefore constitute a trespass.” Oeder, 103 Ohio App.3d at 338. Oeder involved an indirect trespass claim made by plaintiffs-landowners who claimed dust and dirt from the defendants’ sand and gravel processing facility, asphalt plant, and concrete plant had invaded and interfered with the use of their property. In Oeder we expressly approved and adopted the following elements for indirect trespass caused by airborne pollutants: “‘a plaintiff must show (1) an invasion affecting an interest in the exclusive possession of his property; (2) an intentional doing of the act which results in the invasion; (3) a reasonable foreseeability that the act done could result in an invasion of the plaintiff‘s possessory interest; and (4) substantial damages to the res.‘” (Emphasis sic.) Oeder at 339, quoting Borland v. Sanders Lead Co., Inc., 369 So.2d 523 (Ala.1979). The Fourth District in Brown, 87 Ohio App.3d at 717, and the Seventh District in Hager, 2022-Ohio-3466 at ¶ 39, likewise identified and applied the foregoing elements to indirect trespass claims. We find that the elements identified in Oeder apply to the Merandas’ trespass claim as they have asserted that herbicides from appellees’ May 10, 2018 herbicide application drifted onto their property and damaged their grapevines.20
{¶ 98} Utilizing the Oeder elements, we find that appellees failed to meet their burden under
{¶ 99} The fact that the chemicals could drift onto, or invade, Seth‘s property was foreseeable given that the labels for the individual herbicides warned of the risk of drift. Weedar Amine 2,4-D specifically advised that for spray drift management, the product was not to be applied in wind speeds greater than 15 m.p.h. or where there were nontarget crops within 250 feet downwind of the application. Authority XL advised that “[d]rift potential increases at wind speeds * * * of more than 10 mph” and advised users to “avoid gusty or windless conditions.” When deposed, Martin acknowledged familiarity with Weedar Amine 2,4-D and Roundup PowerMax labels, and indicated he read the Authority XL label before applying the herbicide on May 10, 2018. As such, Martin was on notice of the risk of the herbicides drifting onto the grapevines located on the neighboring property.
{¶ 100} Whether herbicides from the May 10, 2018 application caused substantial damage to Seth‘s property is a disputed issue of fact for jury determination. Where the trespass alleged is an indirect trespass, “physical damage or actual interference with the reasonable and foreseeable use of the propert[y] must be demonstrated.” Chance, 77 Ohio St.3d at 28. Moreover, the damage must be substantial. Oeder at 339; Lueke, 2000 Ohio App. LEXIS 4845 at *17-18. As discussed above, the Merandas presented evidence by way of Seth‘s and Maura‘s deposition testimony, the ODA‘s Notice of Warning Letter, and expert opinion as to the cause and severity of the damages sustained to the grapevines. The Merandas testified about the impact the herbicide drift damage has had on their use of the property, with both Seth and Maura indicating that the quality and quantity of grape production in the vineyard had been significantly decreased. The Merandas’ experts indicated the damage was significant, or as Pavlis indicated, “the worst 2,4-D damage [he] had ever seen.” Pavlis indicated the damage was so extensive that the grapevines had to be ripped out and replaced at a cost of $25,817 per acre.
{¶ 101} Given the evidence presented by the parties as it relates to the Merandas’ indirect trespass claim, we find that genuine issues of material fact exist which preclude judgment from being rendered in appellees’ favor on this claim. The trial court erred in finding that the Merandas had “no viable” claim for trespass.
3. Nuisance Claim
{¶ 102} The trial court found appellees were entitled to summary judgment on the Merandas’ private nuisance claim because the Merandas “have failed to put forth any evidence of recklessness on the part of the [appellees].” On appeal, the Merandas argue that “recklessness” was not required for their nuisance claim—negligent conduct sufficed.
{¶ 104} While we agree with the Merandas that a private nuisance claim may be brought when there has been an unintentional invasion caused by negligent conduct, we nonetheless find that the trial court did not err in entering summary judgment in appellees favor. As set forth above, a private nuisance involves a nontrespassory invasion. Nithiananthan at ¶ 32. The facts of this case indicate a trespassory invasion of chemicals onto Seth‘s property. As such, nuisance is not a viable theory of recovery for the Merandas’ property damage.
{¶ 105} We recognize that there are some instances when a nuisance claim and an indirect trespass claim may be simultaneously pursued. Consider, for instance, the situation identified in Brown:
Brown at 717, quoting Borland, 369 So.2d at 530. The present case, however, is not one of those situations where a nontrespassory invasion interfered with Merandas use and enjoyment of their property. Accordingly, we find that summary judgment was properly entered in appellees’ favor on the private nuisance claim, albeit on different grounds.“For example, if the smoke or polluting substance emitting from a defendant‘s operation causes discomfort and annoyance to the plaintiff in his use and enjoyment of the property, then the plaintiff‘s remedy is for nuisance; but if, as a result of the defendant‘s operation, the polluting substance is deposited upon the plaintiff‘s property, thus interfering with his exclusive possessory interest by causing substantial damage to the res, then the plaintiff may seek his remedy in trespass, though his alternative remedy in nuisance may co-exist.”
4. Negligent Hiring, Supervision, and Training Claim
{¶ 106} The Merandas dedicated three sentences in the argument section of their appellate brief to their claim that summary judgment was improperly entered in appellees’ favor on their negligent hiring, supervision, and training claim. They contend that they “presented substantial evidence that Cherry Fork failed to properly hire, supervise and/or train both Michelle and Martin. Additionally, the Merandas presented substantial evidence that such negligence caused their damages. Accordingly, this claim was not a proper subject of summary judgment.”
{¶ 107} The Merandas failed to develop any argument concerning their negligent hiring, supervision, or training claim in their appellate brief. App.R. 16(A)(7) provides that an appellant‘s brief shall include “[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for
5. Punitive Damages
{¶ 108} The trial court entered judgment in favor of appellees on the Merandas’ claim for punitive damages, finding “[the Merandas] offered no evidence of actual malice.” The Merandas’ dispute this finding, arguing they presented evidence showing Martin acted with a conscious disregard for the safety of their grapevines by knowing of the windy weather conditions and deciding to spray anyways.
{¶ 109} “In Ohio, an award of punitive damages is available only upon a finding of actual malice.” Whitson v. One Stop Rental Tool & Party, 12th Dist. Preble No. CA2016-03-004, 2017-Ohio-418, ¶ 26, citing Calmes v. Goodyear Tire & Rubber Co., 61 Ohio St.3d 470, 473 (1991). “Actual malice for these purposes is (1) that state of mind under which a person‘s conduct is characterized by hatred, ill will or a spirt of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” Id., citing Preston v. Murty, 32 Ohio St.3d 334, 335 (1987). “[S]omething more than mere negligence is always required before an award of punitive damages may be made.” Id. “A possibility or even probability of harm is not enough as that requirement would place the act in the realm of negligence.” Id., citing Murty at 336. “[B]efore submitting the issue of punitive damages to the jury, a trial court must review the evidence to determine if reasonable minds can differ as to whether the party was aware his or her act had a great probability of causing substantial harm.” Murty at 336. “Furthermore, the court must determine that sufficient evidence is presented revealing that the party consciously disregarded the injured party‘s rights or safety.” Id.
{¶ 110} Appellees argued they were entitled to summary judgment on the issue of punitive damages because the Merandas could not present any evidence demonstrating Martin acted with actual malice in applying the herbicides on May 10, 2018. Appellees contend Michelle‘s and Martin‘s deposition testimony shows affirmative actions were taken to prevent herbicide drift to the Merandas’ grapevines. Michelle and Martin indicated that they delayed in spraying the Bulow soybean field until May 10, 2018 due, in part, to prior bad weather conditions. On the day of the spray, Heno D, a wind control and anti-foaming agent was used to help prevent drifting. Further, Martin‘s deposition testimony indicated that while spraying the Bulow soybean field on May 10, 2018, he visually monitored wind conditions and made the decision to stop any further sprays once he observed wind speeds were increasing.
{¶ 111} We find, contrary to the appellees’ arguments, that the Merandas did present some evidence creating an issue of fact as to whether Martin acted with actual malice in his May 10, 2018 herbicide application to the soybean field. Specifically, we find that Martin‘s deposition testimony about his actions in finishing the
6. Treble Damages
{¶ 112} As explained in Denoyer v. Lamb, 22 Ohio App.3d 136, 138 (1st Dist.1984),
without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time. Accord Collins v. Messer, 12th Dist. Butler No. CA2003-06-149, 2004-Ohio-3007, ¶ 16; Colegrove, 2015-Ohio-533 at ¶ 35.in an action for compensatory damages for cutting, destroying and damaging trees and other growth, and for related damage to the land, when the owner intends to use the property for a residence or for recreation or both, according to his personal tastes and wishes, the owner is not limited to the diminution in value (difference in value of the whole property before and after the damage) or to the stumpage or other commercial value of the timber. He may recover as damages the costs of reasonable restoration of his property to its preexisting condition or to a condition as close as reasonably feasible,
{¶ 113} In addition to compensatory and punitive damages, the Merandas seek treble damages pursuant to
{¶ 114} In the case before us, the Merandas have presented summary judgment evidence creating an issue of fact as to whether appellees acted recklessly in conducting the May 10, 2018 herbicide spray. Issues of fact exist as to whether
IV. CONCLUSION
{¶ 115} We hereby sustain the Merandas’ sole assignment of error in part and overrule it in part. To the extent that the trial court entered judgment in appellees’ favor on the common-law negligence claim, nuisance claim, and the negligent hiring, supervising, and training claim, we affirm the trial court‘s decision. However, we find that the trial court improperly disregarded some
{¶ 116} Judgment affirmed in part, reversed in part and the matter remanded for further proceedings.
S. POWELL, P.J., and M. POWELL, J., concur.
Notes
Q: What about buffer zones, what‘s your understanding of what a buffer zone is?
[Martin]: Depending on how much distance they want between two crops.
Q: Do you know if there was a buffer zone between the chemical applications that you made on May 10th and May 11th and the vineyard?
[Martin]: Just the bean field that was between – the one bean field and the other one, right up against the vineyard.
Q: Do you know how many feet that was?
[Martin]: It would have to be, I would think, over 150 feet because it was over my boom length quite a bit, so –
* * *
Q: And do you know how many feet are between the vineyard and where that [soybean] field is located?
[Martin]: I cannot be a hundred percent accurate on that, no.
Q: Were you aware of the label requirements of a 250-feet buffer zone?
[Martin]: Yes.
Q: Was there a 250-feet buffer zone between the field you were spraying and the vineyard?
[Martin]: I can‘t be a hundred percent accurate on that.
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(8) Public records. A record or statement of a public office if: (A) it sets out (i) the office‘s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case, or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
(Emphasis added.) Therefore, underQ: Right. So, for example, if you were asked by another client or consultant, you know, someone you consult with, should I spray 2,4-D in close proximity to my vineyards for purposes of growing another crop, you would probably say, “No, that‘s not a very wise idea?”
[Pavlis]: Correct
Q: Because there‘s a risk of drift, which is well known?
[Pavlis]: Correct.
Q: Do you know that 2,4-D can drift when there‘s no wind at all? Are you aware of that?
[Pavlis]: That‘s true.
Q: Is it more likely to drift with no wind or heavy wind, if you know?
[Pavlis]: Definitely with wind. Definitely with higher temperatures, yeah, uh-huh.
Id. at ¶ 13. Analogizing the present case to Robinson, appellees contend they are entitled to judgment as the Merandas cannot demonstrate appellees intended for the herbicides to infiltrate the Merandas’ grapevines during Martin‘s chemical application of the neighboring soybean field.the issue in the case * * * was not whether the [defendants] intentionally built a swimming pool in their backyard with knowledge that water from the pool could enter the [plaintiff‘s] property. Rather, * * * the issue was whether the [defendants] intended to bring about the exact result, namely for the pool water to infiltrate [plaintiff‘s] property and home, by building their pool, or whether they believed it to be substantially certain that building the pool would cause that result.
{¶b} We find Robinson inapplicable to the case at hand. In Robinson, the parties did not argue and we did not address an indirect trespass cause of action. In contrast, in the present case, the Merandas pled in their complaint and argued in their memorandum in opposition to summary judgment an indirect trespass cause of action by way of herbicide drift. As the Merandas argued that their grapevines were damaged by “chemicals improperly drifting [from the Bulow soybean field] onto the adjacent vineyard,” we find it appropriate to analyze their indirect trespass claim in accordance with the test laid out in Oeder.