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07/12/83 ROBERT J. BENNETT AND PATRICIA ANN BENNETT

July 12, 1983

ROBERT J. BENNETT AND PATRICIA ANN BENNETT, AND RAYMOND C. MEYER, D/B/A RAY'S HONEY FARM, PLAINTIFFS-APPELLANTS,
v.
THE LARSEN COMPANY, A WISCONSIN CORPORATION, AND HARTFORD ACCIDENT & INDEMNITY COMPANY, AN INSURANCE CORPORATION, AND AG-AIRE, INC., DEFENDANTS-RESPONDENTS



Appeal from a judgment of the Circuit Court for Outagamie County: Gordon Myse, Judge.

Petition to Review Granted.

Foley, P.j., Dean and Cane, JJ.

The opinion of the court was delivered by: Cane

Robert and Patricia Bennett and Raymond Meyer (appellants) appeal a judgment entered after a jury verdict dismissing their complaint against The Larsen Company, Hartford Accident & Indemnity Company, and Ag-Aire, Inc. (respondents), for damages for the death of their honeybees allegedly caused by the respondents' negligent application of pesticides. Appellants contend that the trial court erred in its jury instructions and that it should have changed the jury's verdict answers, or granted judgment notwithstanding the verdict or a new trial because of the erroneous instructions. We affirm.

Appellants are Outagamie County beekeepers. Larsen is a food processor that contracts with farmers to produce food for its canning operation in Hortonville. Under the contract terms, Larsen assumes responsibility for pest control on the leased lands, which includes the decision to apply pesticides.

In 1977 and 1978, Larsen contracted with certain Outagamie County farms to grow sweet corn. In both years, Larsen officials observed infestations of corn borers and earworms in cornfields covered by its contracts. Larsen purchased the pesticides Sevin in 1977 and Lannate in 1978 to control these infestations. In 1977, Ag-Aire aerially applied Sevin to Larsen's leased sweet corn fields. Larsen's records indicate that Ag-Aire sprayed Sevin by helicopter on acres of sweet corn for Larsen on August 3, 4, 12, 13, and 23, 1977.

On August 13, 1977, Robert Bennett observed someone aerially spraying a sweet corn crop adjacent to his home and automobile business. After the spraying, Bennett noticed that several bees in his home observation hive were dead. He also suffered losses in his home production hives and in certain colonies at other locations.

In 1978, the Outagamie County Beekeepers Association formed a pesticide committee to gather and provide information concerning the use of pesticides and their effect on bees. As a result of a committee meeting in February, 1978, a program was initiated whereby Outagamie County beekeepers could locate their beehives on plat maps, and those using pesticides could locate their fields on the maps. Carl Hanamann, chief fieldman for Larsen, subsequently received maps marked 1978. These maps indicated the townships where Outagamie County beekeepers, including the Bennetts and Meyer, had their beehives and the locations of the beehives. Hanamann also received a list of beekeepers, their addresses and telephone numbers, and the townships where they had their beehives in 1978.

On July 18, 1978, Hanamann telephoned Paula Jorgensen, chairperson of the pesticide committee, and informed her that Larsen would be spraying a pesticide on certain fields as soon as the weather cleared. Hanamann also called Jorgensen on July 20, 1978, and indicated when and where Larsen would apply the pesticide. After that call, Jorgensen contacted Bennett to inform him of the spraying because he had beehives in the areas to be sprayed. Jorgensen also contacted Meyer on July 20 for the same reason.

After the spraying, which was done by Ag-Aero, Inc., *fn1 Bennett and Meyer inspected their colonies at various locations and observed damage to several beehives. The Bennetts and Meyer filed a complaint against the respondents, in which they alleged that the respondents' negligent application of pesticides caused damage to their beehives. The Bennetts sought damages for losses incurred in 1977 and 1978. Meyer sought damages for losses incurred in 1978. The jury did not find that Ag-Aire was negligent in its conduct of spraying on August 13, 1977, and it did not find that Larsen was negligent in its participation in the August 13 spraying. In addition, the jury did not find that Ag-Aero was negligent in its conduct of spraying on July 20-23, 1978, and it did not find that Larsen was negligent in its participation in the spraying operation during that period. Finally, the jury found that both Bennett and Meyer were negligent with regard to taking reasonable precautions to protect their property from damage from the July 20-23, 1978, spraying.

Appellants contend that the trial court should have instructed the jury that Wisconsin law requires aerial applicators of pesticides and those contracting for such services to spray according to label directions or they are negligent. *fn2 To support this assertion, appellants cite sec. 94.70(3) (g), Stats., which provides:

(3) No person may:

(g) Use any pesticide in a manner inconsistent with its labeling except as authorized by the department.

Appellants argue that this and other statutory provisions and administrative regulations in effect in 1977-1978 *fn3 establish a duty of care to their bees whether on or off the sprayed fields, and that ...


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