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Keller Farms, Inc. v. McGarity Flying Service, LLC

United States District Court, E.D. Missouri, Southeastern Division

December 1, 2017

KELLER FARMS, INC., Plaintiff,
v.
McGARITY FLYING SERVICE, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          ABBIE CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the Motion to Dismiss of Stewart Defendants. (Doc. 42.) Plaintiff has filed a Memorandum in Opposition (Doc. 47) and a Motion for Leave to Amend Complaint (Doc. 48), to which the Stewart Defendants have filed a Reply (Doc. 50). The parties have also filed a Joint Motion for Continuance of Deadlines in Amended Scheduling Order. (Doc. 55.)

         I. Background[1]

         Plaintiff Keller Farms is an Illinois corporation that owns and operates farmland on Route 77 in Benton, Missouri (the “Property”). In the First Amended Complaint, Plaintiff states that, at the beginning of the 2015 growing season, Keller Farms had planted 897 acres of wheat, 100 acres of sweet corn, and 99 acres of horseradish on the Property. Keller Farms also had a sycamore tree farm, and numerous other additional trees and foliage for windbreak and ornamental purposes.

         Defendant Dennis E. McGarity was licensed by the Missouri Department of Agriculture (“MDOA”) as a commercial applicator. Plaintiff states that McGarity was acting within the course and scope of his affiliation with Defendant McGarity Flying Service, LLC.

         Defendant Michael C. Pemberton[2] was licensed by the MDOA as a private applicator. Plaintiff alleges that Pemberton was an agent or employee of the Defendants Kenny C. Hulshof and Renee L. Hulshof (“Hulshof Defendants”), and was acting in the course and scope of his employment or agency with the Hulshof Defendants.

         Defendants Colin V. Stewart, Brandon G. Stewart, and Faron B. Stewart (“Stewart Defendants”), d/b/a Stewco Farms, hired the McGarity Defendants to perform the aerial broadcast of herbicides.

         Plaintiff alleges that, on April 23, 2015, Defendant McGarity applied Clarifer herbicide, Afforia herbicide and Roundup Powermax II via aerial application to 303 acres of farmland situated to the northeast of the Property. Plaintiff claims that these pesticide chemicals drifted with the wind and landed on the Property.

         Plaintiff alleges that, on May 13, 2015, Defendant Pemberton applied Defy Amine 4 and Warrant Herbicide to 262 acres of farmland situated to the south of the Property, and that these chemicals drifted with the wind and landed on the Property.

         Plaintiff states that the MDOA, through the Bureau of Pesticide Control, investigated the wind drift damage to the Property, collected samples of damaged trees and crops from the Property, and subsequently issued letters of warning to Defendants dated February 3, 2016.

         Plaintiff claims that it suffered the following damages: 897.22 acres of wheat were damaged resulting in lost sales in the approximate amount of $114, 016; 30, 000 bags of corn were unable to be sold totaling lost damages in the approximate amount of $500, 000; 11.5 acres of the horseradish crop were damaged, causing lost sales in the approximate amount of $19, 174; the ornamental trees on the Property were damaged, resulting in a loss of value of $317, 882; trees on the Property that serve a vital windbreak function were damaged, including 319 dead sycamore trees and 42 dead pine trees, resulting in a repair and replacement estimate of approximately $180, 500; and lost business relations and business reputation with one of its major purchasers due to being unable to fill 2015 purchase orders from pesticide damaged corn.

         In Count I, Plaintiff asserts a negligence per se claim against all Defendants, claiming that Keller Farms sustained damage to the Property as a result of Defendants' misuse of pesticide in violation of Missouri statutes and regulations. In Count II of the Complaint, Plaintiff alleges that Defendants were negligent in applying the chemicals and pesticides listed above, which resulted in damage sustained to the Property. In Count III, Plaintiff asserts a claim for trespass and treble damages based on Defendants' application of pesticides and chemicals on the Property.

         In their Motion to Dismiss, the Stewart Defendants argue that Plaintiff's First Amended Complaint fails to state a claim upon which relief can be granted because the Stewart Defendants cannot be held vicariously liable for the actions of the McGarity Defendants. Specifically, the Stewart Defendants contend that the “inherently dangerous activity” exception to the general rule that a party is not liable for the tortious conduct of an independent contractor does not apply in this case.

         Plaintiff responds that it has properly stated a claim against the Stewart Defendants. Plaintiff also requests leave to file its Second Amended Complaint, which alleges in the alterative that the McGarity Defendants were not merely independent contractors of the Stewarts, but that the Stewarts exercised ...


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