Pride of San Juan, Inc. v. Pratt (1/29/2009)

February 3, 2009

Arizona Court of Appeals Division One Holds that A Principal is Vicariously Liable for the Negligence of an Independent Contractor Crop Duster Because Crop Dusting Remains an Inherently Dangerous Activity Despite Safety Improvements.

Defendant hired an independent contractor for aerial application of pesticides to her broccoli field.  The pesticides contaminated crops on an adjacent field owned by Plaintiff, who sued Defendant and the crop duster.  Defendant moved for summary judgment on Plaintiff’s claim that Defendant was vicariously liable for the negligence of the crop duster, an independent contractor.  The trial court denied the motion on the ground that, pursuant to the Arizona Supreme Court’s decision in S.A. Gerrard Co., Inc. v. Fricker, 42 Ariz. 503 (1933), crop dusting is an inherently dangerous activity, such that vicarious liability applies.  On this same basis, the trial court later entered judgment for Plaintiff, ruling as a matter of law that Defendant was vicariously liable for the fault of the crop-duster independent contractor.  Defendant appealed.

The Court of Appeals affirmed.  An activity is inherently dangerous if (1) the risk of harm cannot be eliminated through the exercise of reasonable care; and (2) the risk is to the person, land or chattels of another.  If the risk is one that can be recognized in advance, the activity is inherently dangerous if the risk of harm is either inherent in the nature of the activity or is a risk normally expected in doing the task. 

The Court of Appeals reviewed expert witness evidence concerning safety improvements to crop-dusting practices.  The Court concluded that technological advances had lessened, but not eliminated, the inherent risks of damage from chemicals drifting to adjacent property.  Because the expert evidence relied upon for summary judgment briefing did not support a conclusion that the risks inherent in crop-dusting can be eliminated with reasonable care, the Court concluded that crop dusting remains an inherently dangerous activity for purposes of vicarious liability.

Judge Norris drafted the opinion; Judges Kessler and Gemmill concurred.