{ "id": 1575471, "name": "Charles LIGOCKY, Plaintiff-Appellee, v. Ted WILCOX, Defendant-Appellee, Cross Appellant, v. Herbert STEWART, d/b/a Herb's Flying Service, Defendant-Appellant, v. JAMES MARCAK, SONO, INC., a Texas Corporation and Kalo Laboratories, Inc., a Missouri Corporation, Defendants-Cross Appellees", "name_abbreviation": "Ligocky v. Wilcox", "decision_date": "1980-11-06", "docket_number": "No. 4442", "first_page": "275", "last_page": "279", "citations": [ { "type": "official", "cite": "95 N.M. 275" }, { "type": "parallel", "cite": "620 P.2d 1300" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "83 N.M. 336", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334833 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0336-01" ] }, { "cite": "57 N.M. 661", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843047 ], "weight": 3, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0661-01" ] }, { "cite": "92 N.M. 575", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557044 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0575-01" ] }, { "cite": "93 N.M. 755", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568716 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/93/0755-01" ] }, { "cite": "86 N.M. 763", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823695 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0763-01" ] }, { "cite": "89 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867609 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0155-01" ] }, { "cite": "85 N.M. 679", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777641 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0679-01" ] }, { "cite": "52 A.L.R.3d 112", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1972, "opinion_index": 0 }, { "cite": "83 N.M. 730", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336986 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0730-01" ] }, { "cite": "40 Tex.L.Rev. 527", "category": "journals:journal", "reporter": "Tex. L. Rev.", "year": 1962, "opinion_index": 1 }, { "cite": "6 Stan. L.Rev. 69", "category": "journals:journal", "reporter": "Stan. L. Rev.", "year": 1953, "opinion_index": 1 }, { "cite": "19 Hastings L.J. 476", "category": "journals:journal", "reporter": "Hastings L.J.", "year": 1968, "opinion_index": 1 }, { "cite": "567 P.2d 223", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 1 }, { "cite": "567 P.2d 218", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1977, "opinion_index": 1 }, { "cite": "88 Wash.2d 855", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1111204 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/wash-2d/88/0855-01" ] }, { "cite": "37 A.L.R.3d 833", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1971, "opinion_index": 1 }, { "cite": "91 N.M. 306", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571048 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/91/0306-01" ] }, { "cite": "94 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573191 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/94/0084-01" ] }, { "cite": "64 N.M. 290", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346733 ], "weight": 2, "year": 1958, "opinion_index": 1, "case_paths": [ "/nm/64/0290-01" ] }, { "cite": "57 N.M. 661", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843047 ], "weight": 2, "year": 1953, "opinion_index": 1, "case_paths": [ "/nm/57/0661-01" ] }, { "cite": "93 N.M. 755", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568716 ], "weight": 2, "year": 1980, "opinion_index": 1, "case_paths": [ "/nm/93/0755-01" ] } ], "analysis": { "cardinality": 676, "char_count": 14927, "ocr_confidence": 0.837, "pagerank": { "raw": 4.370710586428907e-08, "percentile": 0.27438703955327126 }, "sha256": "5a22d65a4246a86494faf1fef69e1ec34e85b912ca0ebebfd2b59beedd2f7352", "simhash": "1:9f63011dbde64c3f", "word_count": 2413 }, "last_updated": "2023-07-14T19:05:15.389388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS, J., concurs.", "SUTIN, J., concurring in part and dissenting in part." ], "parties": [ "Charles LIGOCKY, Plaintiff-Appellee, v. Ted WILCOX, Defendant-Appellee, Cross Appellant, v. Herbert STEWART, d/b/a Herb\u2019s Flying Service, Defendant-Appellant, v. JAMES MARCAK, SONO, INC., a Texas Corporation and Kalo Laboratories, Inc., a Missouri Corporation, Defendants-Cross Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe herbicide, Defy, containing 2 \u2014 4D, was applied to a milo field to kill weeds. Some adjacent cotton plants were damaged. The appeal involves: (1) liability of the supplier to the owner of the cotton on a theory of express warranty, and (2) liability of the person aerially applying the Defy to the owner of the cotton on a theory of strict liability.\nLigocky sued all the named defendants claiming his cotton had been damaged by the aerial application of Defy. His claims against Wilcox and Stewart were settled; the record does not show a disposition of Ligocky\u2019s claims against the other defendants. Ligocky\u2019s claims, however, are not involved in this appeal.\nWilcox, the owner of milo and cotton fields, cross-claimed against Sono, who sold the Defy to Wilcox, Marcak, a salesman for Sono, and Kalo Laboratories, Inc., who manufactured Defy. Kalo was never served and is not a party. Wilcox also cross-claimed against Stewart who was employed by Wilcox to aerially apply the Defy. The issues on appeal involve the disposition of these cross-claims.\nExpress Warranty\nWilcox cross-claimed against Sono and Marcak on a theory of an express warranty that had been breached. The alleged warranty, stated in Wilcox\u2019 requested findings, was \u201cthat Defy would not drift or volatize and that it could be aerially applied on the milo and would not damage the adjoining cotton.\u201d The trial court\u2019s finding as to the warranty was \u201cwhen properly applied it [Defy] would not volatize and drift onto adjoining crops.\u201d The trial court found a warranty less extensive than the warranty claimed by Wilcox.\nWilcox claims the trial court erred in concluding that Sono and Marcak were not liable. Wilcox asserts that where a chemical drifts onto adjoining fields, the sellers are liable when they warrant the chemical will not drift onto the adjoining field. Wilcox\u2019 argument does not challenge the trial court\u2019s findings, but the conclusion of non-liability based on the findings made. This contention is based on a misunderstanding of the trial court\u2019s findings.\nThe trial court did not find a warranty that Defy would not drift; rather, it found that Defy would not volatize and drift when properly applied. The findings distinguish between drifting as a result of air movement and drifting as a result of volatilization:\n10. During the application of the Defy by Stewart it was drifted by air movements onto the adjoining cotton fields of Wilcox damaging same.\n11. There was no substantial evidence that the Defy as applied to the milo crop volatized and the vapor drifted onto the cotton causing the damage involved.\nInasmuch as the warranty was that Defy would not volatize and drift, and inasmuch as the trial court\u2019s finding was that the drifting resulted from air movements rather than from volatilization, the trial court\u2019s conclusion was proper on the basis of unchallenged findings.\nStrict Liability\nWilcox purchased the Defy from Sono and Marcak, and employed Stewart to aerially apply the Defy to the milo field. One of Wilcox\u2019 theories of liability against Stewart, stated in Wilcox\u2019 requested findings, was that Stewart knew that Defy contained 2-4D and knew that 2-4D was intrinsically and inherently dangerous. On this basis, Wilcox claimed that Stewart was liable for the damage to Wilcox\u2019 cotton caused by 2-4D. Apparently the trial court understood this to be a claim of strict liability because:\n(a) it found \u201c2-4 D is intrinsically and inherently dangerous to cotton crops, and the 2-4 D as contained in the Defy was the only application of such chemical made in the area of the Wilcox farm on or about that time\u201d; and\n(b) it concluded \u201cStewart is strictly liable to Wilcox for the aerial drift of Defy on application causing damage to his cotton crop.\u201d\nA conclusion of strict liability does not follow from the finding that 2-4D in the Defy was intrinsically and inherently dangerous.\nStrict liability in New Mexico, which is based on Restatement of Torts, Second \u00a7 402A (1965), is applied to suppliers-such as manufacturers, retailers and lessors. Stang v. Hertz Corporation, 83 N.M. 730, 497 P.2d 732, 52 A.L.R.3d 112 (1972). Stewart was not a supplier. Sono and Marcak supplied Defy to Wilcox who, in turn, supplied Defy to Stewart for aerial application. Inasmuch as this type of strict liability does not apply to Stewart, we do not reach the question of whether the Defy, as supplied, could be considered defective, or whether Wilcox could recover from Stewart, on any theory of strict liability, when Wilcox furnished the Defy to Stewart. Compare Chevron Oil Company v. Sutton, 85 N.M. 679, 515 P.2d 1283 (1973); Lay v. Vip\u2019s Big Boy Restaurant, Inc., 89 N.M. 155, 548 P.2d 117 (Ct.App.1976); Hines v. St. Joseph\u2019s Hospital, 86 N.M. 763, 527 P.2d 1075 (Ct. App.1974).\nThe trial court was not requested to, and did not find, that Defy was abnormally dangerous or unreasonably dangerous, thus this theory of strict liability is not applicable. See Gutierrez v. Rio Rancho Estates, Inc., 93 N.M. 755, 605 P.2d 1154 (1980); compare Rudisaile v. Hawk Aviation, Inc., 92 N.M. 575, 592 P.2d 175 (1979). Rather, the trial court found Defy was inherently and intrinsically dangerous to cotton crops. This finding confuses two statements in Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953). The statements are: 1. A 2-4D solution is \u201chighly dangerous to cotton plants\u201d; and 2. \u201c[w]ork that is intrinsically and inherently dangerous in performance is not delegable ... . \u201d\nIn Pendergrass the defendant had 2-4D applied aerially. A neighbor\u2019s cotton was damaged. The defendant was held liable to the neighbor for the negligent application of 2-4D by the operator of the plane, because defendant had full responsibility for the aerial spraying. Full responsibility was imposed because the work of aerially spraying 2 \u2014 4D was intrinsically and' inherently dangerous, and responsibility in those circumstances could not be shifted to the operator of the plane. Pendergrass would have been applicable to Ligocky\u2019s claim against Wilcox; it did not decide the different fact situation of this case which involves Wilcox\u2019 claim against the person he employed to aerially apply Defy.\nStewart applied Defy aerially to Wilcox\u2019 milo field. When he did so he knew the application of 2-4D to cotton was dangerous. During the spraying, the Defy drifted \u201cby air movements\u201d onto Wilcox\u2019 adjoining cotton fields. The work was inherently and intrinsically dangerous. Pendergrass, supra. The nature of the work may be considered in determining whether Stewart was negligent in applying Defy. See U.J.I. Civil 12.2, which explains: \u201cAs the danger that should reasonably be foreseen increases, so the amount of care required also increases.\u201d There is evidence that Wilcox knew the Defy contained 2-4D and knew of the warranty made by Sono and Marca k when he employed Stewart to apply Defy. In determining whether Stewart may be liable for any negligence on his part, the question of Wilcox\u2019 possible contributory negligence (by assumption of risk, Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1972)) must also be considered.\nWilcox contends that under the trial court\u2019s findings, we should hold that Stewart was negligent; Stewart, in turn, claims that under the same findings we should hold that Wilcox was contributorially negligent. Our answer is that these rulings are to be made by the trial court. These issues were presented to, but not decided by, the trial court because of its erroneous strict liability ruling.\nThe judgment in favor of Sono and Marcak on Wilcox\u2019s warranty claim is affirmed. The judgment in favor of Wilcox and against Stewart, on a theory of strict liability, is reversed. The cause is remanded to the trial court to decide, as between Wilcox and Stewart, the claims of negligence and contributory negligence.\nIT IS SO ORDERED.\nWALTERS, J., concurs.\nSUTIN, J., concurring in part and dissenting in part.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(concurring in part and dissenting in part).\nI concur in the affirmance of the judgment in favor of cross-defendants Marcak and Sono, Inc., and dissent from a reversal of the judgment in favor of cross-plaintiff Wilcox.\nThe trial court found that:\nWilcox had a crop of milo infested with weeds, and also had cotton growing in adjacent fields. He contacted Stewart to have aerial application of Formula 40 containing 2-4D. Stewart declined because of the danger of damaging other crops with 2-4D, a product that is intrinsically and inherently dangerous to cotton crops. Stewart suggested that Wilcox contact Marcak, local sales agent for Sono, for a product known as Defy, a product that contained 2-4D also.\nMarcak represented and advertised that when properly applied Defy would not volatize and drift onto adjoining crops. In reliance thereon, Wilcox purchased Defy and contracted with Stewart to aerially apply it to the milo crop. During aerial application by Stewart, Defy did not volatize and drift. It drifted by air movements onto the adjoining cotton fields of Wilcox and damaged them.\nThe court concluded:\n1. Stewart is strictly liable to Wilcox for the aerial drift of Defy on application causing damage to his cotton crop.\nThe trial court held that a field sprayer who sprays a milo area of a landowner with an intrinsically and inherently dangerous product such as 2-4D must pay damages caused if the product is carried by air movements onto the cotton crop of the landowner.\nThis rule is based upon Restatement (Second) Torts \u00a7\u00a7 519 and 520 (1977).\nIn Thigpen v. Skousen & Hise, 64 N.M. 290, 327 P.2d 802 (1958), New Mexico adopted the rule of liability without fault for \u201cultrahazardous activities\u201d stated in Restatement Torts, \u00a7\u00a7 519 and 520 (1938) at 41 47. The Institute believed that \u201cultra-hazardous\u201d was misleading and substituted therefor, \u201cabnormally dangerous.\u201d The present reading of \u00a7\u00a7 519 and 520 are set forth in Gutierrez v. Rio Rancho Estates, Inc., 94 N.M. 84, 607 P.2d 622 (Ct.App.1979), and aff\u2019d, 93 N.M. 755, 605 P.2d 1154 (1980) on the ground that an instruction on strict liability was reversible error where discharged waters resulted in periodic flooding and silting on an adjacent landowner\u2019s property. Sections 519 and 520 are also set forth in Rodgers v. City of Loving, 91 N.M. 306, 573 P.2d 240 (Ct.App.1977), Sutin, J., specially concurring and dissenting, a case which involved burning dead leaves and grass on adjoining property.\nGenerally speaking, New Mexico has adopted the rules and philosophical concepts expressed in the Restatement of the Law. I think we should do so in this case. Annot. Liability For Injury Caused By Spraying Or Dusting Of Crops, 37 A.L.R.3d 833 (1971) contains a survey of cases on this subject matter. After a review of this annotation, the Supreme Court of Washington adopted the strict liability doctrine of the Restatement as the rule of law. Langan v. Valicopters, Inc., 88 Wash.2d 855, 567 P.2d 218 (1977). After deciding that the court shall determine whether an activity is abnormally dangerous as a matter of law, Langan held that strict liability is imposed for damage proximately caused by aerial crop dusting based upon a balancing of conflicting social interests. The court said:\nThere is no doubt that pesticides are socially valuable in the control of insects, weeds and other pests. They may benefit society by increasing production. Whether strict liability or negligence principles should be applied amounts to a balancing of conflicting social interest-the risk of harm versus the utility of the activity. In balancing these interests, we must ask who should bear the loss caused by the pesticides.... [Id. 567 P.2d 223.]\nAfter reciting the circumstances, the court said:\nUnder these circumstances, there can be an equitable balancing of social interests only if appellants [Valicopters] are made to pay for the consequences of their acts.\nThe Langan rule is, of course, an advance made in the development of the law of crop dusting. For a review thereof see Kennedy, Liability In The Aerial Application Of Pesticides, 22 So.Dak.L.Rev. 75 (1977); Crop-Dusting: Two Theories of Liability?, 19 Hastings L.J. 476 (1968); Crop-Dusting; Legal Problems In A New Industry, 6 Stan. L.Rev. 69 (1953); Chapman, Crop Dusting-Scope Of Liability And A Need for Reform In The Texas Law, 40 Tex.L.Rev. 527 (1962).\nWe are confronted, however, with a case in which the cotton crop of Wilcox, who hired the field sprayer, an independent contractor, was damaged, not the cotton crop of a third person. Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953) holds that a landowner is liable for the negligence of a field sprayer if the work is intrinsically and inherently dangerous in performance. In other words, the independent contractor 'is transformed into a servant or employee of the landowner. \u201cAn employee is liable in damages to his employer for his negligence or wrongful act resulting in loss to the employer.\u201d 56 C.J.S. Master and Servant \u00a7 79 (1948); 53 Am.Jur.2d, Master & Servant, \u00a7 108 (1970). The doctrine of strict liability would apply where the work is inherently and intrinsically dangerous.\nUnder the strict liability rule, negligence of a. field sprayer is irrelevant, and contributory negligence of an employer is not a defense, unless the employer intentionally and unreasonably subjected himself to a risk of harm from the abnormally dangerous activity, of which he knew. Restatement (Second) Torts, \u00a7 524.\nStewart requested the court to find that Wilcox purchased Defy to control broadleaf plants in his milo; that he knew Defy contained a substance highly dangerous to broadleaf plants of his cotton crop and knew that Defy could cause harm to his cotton crop. Stewart requested the court to conclude that Wilcox was contributorially negligent in the form of assumption of risk. The court failed to adopt any of these requested findings. This is equivalent to a contrary finding by the court.\nIn reality, the doctrine of strict liability shifts the burden to the field sprayer to prove non-liability. The field sprayer is an \u201cexpert\u201d in the field of crop dusting. The burden belongs on him.", "type": "concurring-in-part-and-dissenting-in-part", "author": "SUTIN, Judge" } ], "attorneys": [ "Larry Ramirez, Crouch, Valentine & Ramirez, Las Cruces, for defendant-appellant Stewart.", "William L. Lutz, Martin, Martin, Lutz & Cresswell, Las Cruces, Gary Jeffreys, P.C., Deming, for defendant-appellee, cross appellant Wilcox.", "Roy G. Hill, Smalley & Hill, Deming, for plaintiff-appellee.", "C. Barry Crutchfield, Templeman & Crutchfield, Lovington, for defendants-cross appellees Marcak & Sono, Inc." ], "corrections": "", "head_matter": "620 P.2d 1300\nCharles LIGOCKY, Plaintiff-Appellee, v. Ted WILCOX, Defendant-Appellee, Cross Appellant, v. Herbert STEWART, d/b/a Herb\u2019s Flying Service, Defendant-Appellant, v. JAMES MARCAK, SONO, INC., a Texas Corporation and Kalo Laboratories, Inc., a Missouri Corporation, Defendants-Cross Appellees.\nNo. 4442.\nCourt of Appeals of New Mexico.\nNov. 6, 1980.\nLarry Ramirez, Crouch, Valentine & Ramirez, Las Cruces, for defendant-appellant Stewart.\nWilliam L. Lutz, Martin, Martin, Lutz & Cresswell, Las Cruces, Gary Jeffreys, P.C., Deming, for defendant-appellee, cross appellant Wilcox.\nRoy G. Hill, Smalley & Hill, Deming, for plaintiff-appellee.\nC. Barry Crutchfield, Templeman & Crutchfield, Lovington, for defendants-cross appellees Marcak & Sono, Inc." }, "file_name": "0275-01", "first_page_order": 307, "last_page_order": 311 }