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Deborah Squires v. Luckey Farmers9/17/2004
DECISION AND JUDGMENT ENTRY
{ 1} This case is before the court on appeal from a judgment of the Ottawa County Court of Common Pleas, where, after a bench trial, the trial court found in favor of appellee, Luckey Farmers, Inc. ("Luckey Farmers"). Appellants, Deborah Squires and Louis C. Squires, Jr., appeal that judgment and ask this court to consider the following assignments of error:
{ 2} "1. The trial court erroneously found in favor of defendants/appellee and awarded plaintiffs/appellants no damages despite the negligence per se actions of defendant/appellee.
{ 3} "2. The trial court's decision awarding judgment against the plaintiffs/appellants and for defendant/appellee is against the manifest weight of the evidence."
{ 4} On May 6, 2000, appellants were working in their garden, which was located on the east side of State Route 105. On that date, Luckey Farmers was spraying an herbicide and liquid nitrogen, a fertilizer, on farm property located on the west side of State Route 105. A west to southwest wind, blowing at 10 to 20 miles per hour, caused the herbicide and fertilizer to drift across the road.
{ 5} At the trial of this matter, Louis Squires testified that he saw "dust" from the sprayed property drifting toward himself and his wife. He asserted that he and Deborah ran into the garage and then into the house and closed their windows. Both Louis and Deborah stated that they "tasted" and/or "smelled" a chemical, but neither party indicated that he or she felt the chemicals touch his or her skin. According to Louis, several of the trees on his property were either severely damaged or died after the spray drifted on his property. In addition he testified that many flowers and other plants died, that Deborah developed serious and permanent rashes, and that the family dog became ill and almost died.
{ 6} Deborah, who, prior to her exposure to the herbicide and fertilizer, suffered from dry skin on her hands and, occasionally, a "sweat rash" on the inside of her elbow and on her neck, and from a rash on her legs, testified that the condition that she developed after the spray drift was different than anything that she had previously experienced. Deborah described this new condition as resembling a sunburn on her face and shoulders that then developed blisters. When the blisters broke, they left scars. The "sunburn" eventually affected the skin on other parts, e.g., her arms and legs, of Deborah's body.
{ 7} Due to the fact that the product used to prevent insect bites and perspiration exacerbate her condition, Deborah can no longer spend much time outdoors with her husband doing such things as fishing, camping, bicycle riding, or going to the beach. In her testimony she revealed that she is required to use two different types of prescribed creams on her body per day and "two pills." Deborah testified that she will have this skin condition "off and on" for the rest of her life.
{ 8} On May 7, 2000, Deborah had an appointment with her gynecologist. She mentioned the "sunburn" and was told to see her family doctor if the condition worsened. When she had a second appointment with her gynecologist on May 17, 2000, Deborah again complained about the "rash" or "sunburn" and was told to see her family physician.
{ 9} Deborah first consulted her family physician, Neiman T. Odeh, D. O., for the skin problems allegedly caused by the spray drift on June 6, 2000. She stated that the delay in consulting with Dr. Odeh was due to the fact that she thought that the rash on her face and shoulders was sunburn. Deborah told the doctor that she had been exposed to a pesticide "about a month ago."
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