A property owner who hired a contractor to spray herbicide may be liable for damages if the herbicide killed trees on an adjacent property, according to the Wisconsin Supreme Court.
The court, in a decision released Thursday, decided that Independence resident Robert Luethi hired an independent contractor to do a service that is “inherently dangerous,” and thus could be liable to pay for damage, even though he was not the person who performed the work. The justices ruled the case is in line with an exception, established by state case law, to the rule that an employer cannot be sued over a contractor’s work.
Luethi hired Briarwood Forestry Service LLC, Pigeon Falls, in 2008 to spray herbicide to get rid of a plant called prickly ash on his property. The herbicide wound up killing 79 trees on Luethi’s neighbor’s property, however, according to court documents.
The neighbors, Bruce and Kelli Brandenburg, sued Luethi in 2011 but Trempealeau County Circuit Judge John Damon ruled in Luethi’s favor in 2012, saying the case did not meet the previously-established exception to the contractor rule. The Wisconsin Court of Appeals then took up the case and found the case did meet the exception, however, reversing Damon’s decision.
In its ruling, the state Supreme Court upheld the appellate court’s decision and ordered the case sent back to the circuit court so it can determine if Luethi was negligent and, if so, what he may have to pay for damages.
In an opinion authored by Justice Patrick Crooks, the court declined to change anything about the exception to the law. According to the majority opinion, herbicides pose “a ‘naturally expected risk of harm’ to trees on neighboring properties.”
“The record contains uncontroverted evidence that the chemical used here is capable of killing 56 ‘woody plant’ species, including oak, birch, poplar and maple trees,” according to the opinion.
Thomas Terwilliger, who represents Luethi and Briarwood Forestry, said the decision puts pressure on homeowners to hire insured contractors since they could be liable for a contractor’s work should a problem arise. This could be problematic, he said, since a lot of contractors don’t carry insurance.
Because of this case, Terwilliger said, “any homeowner who hires a contractor to perform work which has potential danger with it is financially responsible for the contractor’s work.”
An attorney for the Brandenburgs did not immediately return calls Monday.
Three members of the court – Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and David Prosser – disagreed, in part, with the majority’s opinion. According to their dissent, they agreed the case should be classified as an exception to the contractor rule, but said no negligence was demonstrated on Luethi’s part, and that a judge or jury should not have to make that determination.
According to the dissent, written by Abrahamson, “because the court has already determined as a matter of law that the herbicide spraying by the independent contractor in the instant case constituted an inherently dangerous activity and nothing in the complaint or record avers Luethi’s negligence, no inquiry into Luethi’s level of care is necessary.”Follow @eheisigWLJ