Arizona Court of Appeals Holds Crop Dusting is Still an Inherently Dangerous Activity

Torts—Crop Dusting is Inherently Dangerous Activity

Pride of San Juan, Inc. v. Pratt, 548 Ariz. Adv. Rep. 20 (App. Div. I, January 29, 2009)(Justice Norris)

A landowner hired a crop duster to dust his crops which resulted in his neighbor's crops being damaged by the chemicals. The neighbor sued the crop duster and the landowner who hired him based upon S. A. Gerrard Co., Inc, v. Fricker, 42 Ariz. 503 27 P. 2d 678 (1933). The trial court ruled that the landowner was liable for the acts of the crop duster as a matter of law.

In Arizona an employer is not ordinarily liable for the negligence of its independent contractor. This is so because an employer lacks control over an independent contractor's work. There are however numerous exceptions to this rule. The Arizona Court of Appeals acknowledged in this case that one such exception is when an independent contractor is hired to perform an “inherently dangerous activity.”

In Fricker the Arizona Supreme Court held that “because of the very great likelihood of the poisonous dust or spray spreading to adjoining or nearby premises and damaging or destroying valuable property . . . [the employer] could not delegate this work . . . and thus avoid liability.”

The Court of Appeals found that an activity is inherently dangerous if the risk of harm cannot be eliminated with due care and the risk is to the person or property of another. Here, although technological advances since 1933 when Fricker was decided significantly improved the activity, made it safer and less likely to cause harm to others, these advances did not “eliminate” the inherent risk of damage to others even if the crop duster exercised reasonable care. As a result, despite the advances in crop dusting technology over the last 76 years Fricker is still good law and a landowner is vicariously liable for the damage caused by a crop duster he hires.

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