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Diehl v. Polo Cooperative Association

March 18, 2002

HAROLD DIEHL AND AILEEN DIEHL, AND AS EX'RS OF THE ESTATE OF ARCHIE DIEHL, PLAINTIFFS-APPELLANTS,
v.
POLO COOPERATIVE ASSOCIATION AND DONNIE MILBY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court Indiv. of Ogle County. No. 93-L-26 Honorable John B. Roe, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum

Released for publication March 20, 2002.

HAROLD DIEHL AND AILEEN DIEHL, AND AS EX'RS OF THE ESTATE OF ARCHIE DIEHL, PLAINTIFFS-APPELLANTS,
v.
POLO COOPERATIVE ASSOCIATION AND DONNIE MILBY, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court Indiv. of Ogle County. No. 93-L-26 Honorable John B. Roe, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum

PUBLISHED

 Plaintiffs, Harold Diehl (Harold) and Aileen Diehl, individually and as executors of the estate of Archie Diehl, sued defendants, Polo Cooperative Association (PCA) and its general manager Donnie Milby, for personal injuries Harold allegedly sustained from exposure to a mixture of herbicides recommended by defendants for use on Harold's corn crops. The trial court granted defendants' motion for summary judgment on the basis of preemption by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C.A. §136 et seq. (West 1999)). Plaintiffs appeal. We reverse and remand.

Harold owns and operates a grain farm. PCA sells and distributes chemicals and fertilizers to farmers. Harold had been a customer of PCA for approximately 14 years and frequently consulted PCA and Milby regarding the use of various chemicals in his farming operation. Milby had served as the general manager of PCA for over 10 years and held a custom applicator license for the application and recommendation of agricultural chemicals since 1984. On May 29, 1991, Harold consulted Milby concerning the selection of an herbicide to apply to his corn crops that year. When Milby suggested that Harold use the same herbicide, Bicep, that Harold had used the prior year, Harold notified Milby that he wanted to eradicate triazine-resistant lamb's quarter weeds. Milby then advised Harold that he could combine Bicep with the herbicide Banvel to achieve this result. Milby indicated to Harold that the Bicep-Banvel mixture was "not labeled." Harold asked Milby if he had used this mixture in the past and Milby informed him that he had used it and that it was effective. Harold gave no indication to Milby that he was familiar with Banvel. Harold testified that Milby said that the mixture was "safe" and that he interpreted this to mean that the mixture was safe for crops, as opposed to safe for humans. However, Harold also testified that he assumed that the chemicals were safe for humans because he did not think that Milby would recommend a product to him that was not safe for humans and because Milby did not say anything about any dangers associated with the chemicals.

The Bicep label indicated that the two chemicals could be combined for application onto no-till corn. Milby recommended to plaintiff the amounts of each chemical to use in a single tank mixture. However, the proportions that Milby recommended were not those listed on the label.

The Banvel label contained a warning that users should avoid breathing spray mist and should not get the product in their eyes or on their skin or clothing. The Bicep label's precautionary statements provided that users should "[a]void breathing vapors or spray mists."

Weather conditions were breezy on the day that Harold was contemplating applying the Bicep-Banvel mixture to his crops. Harold telephoned Milby to ask him if he should apply the mixture on that day. Milby assured Harold that he could apply the herbicides under such weather conditions and advised Harold that it was urgent to do so or else it would be too late to help Harold's crops. Harold followed Milby's advice and spent the next 1½ to 2 days applying the mixture. He did not read either the Bicep or the Banvel labels prior to applying the mixture. Harold used a tractor and a trail-behind sprayer and spray nozzle to apply the herbicides to his crops. During the application, Harold wore a shirt and pants but no safety devices. Each time he turned the tractor, Harold drove through a vapor mist generated by the chemical application.

Following the application of the chemicals, Harold began to experience headaches, nausea, and muscle and joint pain in his arms and legs. He had never before experienced similar symptoms after any other chemical application.

Plaintiffs sued defendants, requesting damages for Harold's personal injuries. Defendants moved to dismiss the complaint, arguing that FIFRA preempted plaintiffs' claim. The trial court denied the motion, finding that plaintiffs' claim could encompass (1) a failure to warn; (2) a failure to act to prevent foreseeable danger; or (3) an act negligently undertaken or performed. Defendants subsequently moved for summary judgment, arguing that (1) FIFRA preempted plaintiffs' claim; and (2) as a matter of law, plaintiffs could not establish that defendants' conduct proximately caused Harold's injuries. The trial court granted that motion, finding that plaintiffs' claim constituted a failure-to-warn cause of action and was preempted by FIFRA. The court did not address the proximate cause issue.

Plaintiffs appeal, arguing that (1) the trial court misconstrued their claim as a failure-to-warn claim and, thus, misapplied FIFRA; and (2) the pleadings and depositions raise a genuine issue of material fact as to ...


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