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Kleiss v. Bozdech

June 09, 2004


Appeal from Circuit Court of Douglas County. No. 00L10. Honorable John P. Shonkwiler, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann


In April 2000, plaintiffs, Barry Kleiss and Robert Kleiss, d/b/a Kleiss Produce Farms, filed a complaint against defendants, William Bozdech and Todd Herbert, alleging that Bozdech's and Herbert's use of the herbicide 2,4-D caused damage to crops at Kleiss Farms. In March 2003, Bozdech filed a motion for summary judgment.

In July 2003, Kleiss Farms moved to voluntarily dismiss Herbert as a defendant, and the trial court granted the motion. Following a July 2003 hearing, the court granted Bozdech's motion for summary judgment.

Kleiss Farms appeals, arguing that the trial court erred by granting Bozdech's summary judgment motion because genuine issues of material fact exist as to whether (1) Bozdech's spraying of 2,4-D was a proximate cause of crop damage at Kleiss Farms and (2) Bozdech breached a duty of care. Because we agree with Kleiss Farms, we reverse and remand.


In its April 2000 complaint, Kleiss Farms alleged, in pertinent part, as follows:

"3. On or about April 23, 1998[,] and for some time prior and after thereto, [Bozdech] farmed land located on county road 1450 East, north of the intersection with county road 1450 North.

4. Prior to the incident in question[,] [Bozdech] knew or should have known that [Kleiss Farms] was located within approximately two miles of the land farmed by him.

5. Prior to the incident in question[,] [Bozdech] knew or should have known that [Kleiss Farms] grew crops which were sensitive to certain chemicals and such chemicals presented a danger to [Kleiss Farms'] crops.

6. Prior to the incident in question[,] [Bozdech] knew or should have known that one of such chemicals was 2,4-D.

7. On or about April 23, 1998[,] [Bozdech] sprayed a waterway located on his land with 2,4-D.

8. It was the duty of [Bozdech] to exercise due and proper care for the safety of his neighbor's crops in spraying 2,4-D.

9. Notwithstanding said duty, [Bozdech] was guilty of one or more of the following negligent acts or omissions:

a. Spraying a dangerous chemical when he knew or should have known that such spraying presented a danger to [Kleiss Farms'] fruits and vegetables located a short distance from where [Bozdech] was spraying.

b. Negligently spraying such chemicals when the wind was in a position to cause wind drift and subsequent damage to [Kleiss Farms'] crops.

c. Negligently spraying such chemicals when he knew or should have known that the volatility of the chemicals was such that a danger of wind drift of the chemicals lasted for several days after they were applied.

10. As a direct and proximate result of one or more of such negligent acts of [Bozdech,] [Kleiss Farms has] suffered economic loss in that numerous crops were damaged and/or destroyed resulting in a decreased yield and income for [Kleiss Farms]."

In March 2003, Bozdech filed a motion for summary judgment, asserting that Kleiss Farms lacked evidence that (1) Bozdech's application of 2,4-D was the proximate cause of Kleiss Farms' crop damage and (2) Bozdech breached a duty. A summary of the pertinent evidence contained in discovery depositions follows.

Barry Kleiss testified that he farmed approximately 185 acres and, apart from about 40 acres on which he grew soybeans, he raised fruits and vegetables. On April 27, 1998, Barry first noticed what looked like herbicide damage on his crops. His notes indicated that (1) red bud and apple trees appeared to be showing herbicide damage and (2) tomato plants in the east side of his "high tunnel greenhouse" were possibly damaged.

On May 2, 1998, Barry began investigating surrounding fields. He drove about two miles to the south and the west, and even further to the north and the east. About 1 3/4 miles northeast of his farm, Barry located a farm where 2,4-D had apparently been used (this farmland was later identified as land farmed by Bozdech). Specifically, Barry saw damage to weeds along a ditch and across the road. He followed the pattern of damage all the way back to Kleiss Farms. Barry found no other evidence of 2,4-D damage in area fields.

Barry acknowledged that for Bozdech's application of 2,4-D to have affected Kleiss Farms' crops, wind would have had to come out of the northeast or blown northeast to southwest. Barry did not know whether the 2,4-D damage was due to spray drift or volatilization.

Riley Foster testified that he received a B.B.S. in agricultural entomology from the University of Wyoming and had been a plant pesticide specialist with the Illinois Department of Agriculture for 25 years. His territory included Vermilion, Champaign, Piatt, and Macon Counties, and a "little chunk" of Douglas County. His job involved (1) inspecting nursery trees and shrubs for diseases and insects, (2) quarantinable insect outbreaks, and (3) investigating pesticide complaints, drift complaints, and formulation complaints. Depending on weather conditions, he spent between 10% and 40% of his time investigating drift complaints.

Foster first went to Kleiss Farms on May 5, 1998, after Barry telephoned him about his crop damage. Foster walked around the whole farm. There was more damage to tomatoes at the northeast end of the greenhouse than at the other end, and the same sort of damage existed outside the greenhouse. The damage looked to Foster like growth regulator hormone herbicide damage. (2,4-D is a growth regulator hormone herbicide.) Foster did not think the damage could have been caused by anything other than exposure to growth regulator hormone herbicide. Foster took some samples of the tomato plants for laboratory analysis.

Foster also noted distortion and death in the new growth on yew bushes on the northeast side of the farm house. New growth on yew bushes is sensitive to growth regulator hormone herbicide. Foster also saw signs of damage to cone flowers on the east side of the house.

Barry told Foster that the only spraying in the area had been in a field about 1 1/2 to 2 miles to the northeast. Foster then drove around the area checking for roadside weed damage. Foster located a field at around 1450 East, north of 1450 North, as being the source of the herbicide that affected Kleiss Farms' crops. Barry told Foster that Bozdech farmed that land. While driving around that day, Foster did not see any other farmland that showed a 2,4-D "burndown."

During a May 8, 1998, telephone conversation, Bozdech told Foster that he had applied Roundup and 2,4-D on the morning of April 23, 1998. He used one pint each of Roundup and 2,4-D per acre. Foster acknowledged that it was common among farmers in central Illinois to use 2,4-D and Roundup. It was not part of Foster's job to inspect spray equipment used in 2,4-D application.

Foster returned to Kleiss Farms on May 12, 1998, because herbicide damage occurs over a period of time and can worsen. He saw more damage on the tomatoes. They were smaller at the northern end of the greenhouse, they were yellowish-green, and their flowers were dropping off. Foster took samples of the most severely damaged tomatoes because they would be most likely to have absorbed enough chemical to be detected.

Foster also gathered weather data for April 23, 1998, and learned that on that day the wind was north, northwest. Thus, Kleiss Farms was not directly in line with wind from Bozdech's farm.

After investigating a complaint of possible improper application of herbicide, Foster submitted a report to the Department. If it was determined that such action was warranted, a warning letter would then be sent to the applicator. Foster was not the person who made such determinations, but if Bozdech had been sent a letter, Foster would have received a copy. Bozdech was not sent a warning letter.

Foster further testified that 2,4-D can vaporize after being applied, move as a vapor gas, and affect sensitive plants. Warmth, humidity, and air movement were necessary for this to occur. He estimated that the temperature had to be 80 to 85 degrees Fahrenheit or warmer. He also estimated that vapor drift would occur within two-to-three days of application. Based on his past observations, Foster opined that vapor drift could go at least one mile, and particle drift could go further. He further opined that the damage to Kleiss Farms, based on the time frame, was consistent with vapor drift from Bozdech's farm.

The laboratory results on the tomato plant samples that Foster collected on May 5, 1998, indicated that no 2,4-D or Dicamba (another growth regulator hormone herbicide) was detected. Foster explained those results as follows: "[The laboratory was] unable to pull it out. They could have broken down in the plant in the interim before I collected the sample. And it just makes you wonder about the lab. *** I believe that the plants were affected by 2,4-D. And so it should have been present, or was perhaps not present in a sufficient concentration. I don't know." He added that tomatoes are especially sensitive to 2,4-D exposure.

Finally, Foster opined that Kleiss Farms' crops suffered herbicide damage. It looked more like 2,4-D exposure than Dicamba. When asked if he had an opinion as to the source of the herbicide that caused the damage, Foster said, "no." He further explained that, "[Kleiss Farms] is in a fog of chemicals out there. [It's] surrounded by fields. And it is hard to pinpoint where they may have come from because you never know when they actually connected with the plant and how long it took for the symptoms to be seen." Every year, Kleiss Farms had some damage from growth regulator hormone herbicides. Because the damage in April 1998 was more severe on the north and northeast side of Kleiss Farms, Foster opined that the drift came from the north. The farthest distance that Foster personally had determined growth regulator herbicide to drift and cause damage was one mile.

Walter Black, a laboratory supervisor for the Department of Agriculture, testified, in pertinent part, that tests of the sample from Kleiss Farms showed the presence of 2,4-D; however it was in an amount that was below what the Department used as the "minimum reporting level." The testing method made it "impossible to tell whether [2,4-D] was entirely absent."

Steven Ries testified that three years earlier, he had retired as an associate professor in natural resources and environmental sciences and an adjunct professor in horticulture and crop sciences. At the end of his career, he spent about 50% of his time working at the University of Illinois extension service, dealing with farmers. The remainder of his time he spent teaching and conducting research.

Ries became interested in researching damage to fruits and vegetables caused by 2,4-D and Dicamba after hearing the complaints of fruit and vegetable growers at the extension service. Ries explained that farming had changed tremendously in the past 5 to 10 years, as farmers adopted "minimum till" and "no till" practices. Thus, in the early spring, farmers now apply herbicide to their fields prior to planting. There is a narrow window of opportunity in which weather conditions are ideal for herbicide application. Farmers need large quantities of herbicide, and 2,4-D is one of the cheapest herbicides available. Ries became aware of a tremendous lack of information about how much damage was caused by the use of such herbicides.

Ries had spent the previous three years applying low doses of 2, 4-D, Banvel, and Roundup to apple trees and monitoring the effects. He applied the chemicals at the same time of year that farmers apply the herbicides to their fields. To simulate drift damage, he diluted the concentrations. 2,4-D causes systemic ...

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