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Riggs v. Bleyhl Farms Service12/31/1998
Judges: Authored by Kenneth H Kato Concurring: John A. Schultheis Dennis J. Sweeney
Panel Four
Rodney Craig Riggs appeals the summary dismissal of his claims against the maker and seller of a pesticide that allegedly damaged his cherry crop. He contends he has raised factual questions regarding claims that are not preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. sec. 136 et seq. We disagree and affirm.
Mr. Riggs is an inexperienced cherry orchardist. He relied on Bill Thurman, a fieldman for Bleyhl Farm Service, Inc., for advice and recommendations on agricultural chemicals. In May 1992, Mr. Thurman recommended that Mr. Riggs apply malathion to his trees for control of cherry fruit flies. Mr. Riggs purchased Cythion (a malathion product manufactured by Helena Chemical Co.) from Bleyhl and applied it to his trees. Mr. Riggs did not read the product labels and relied entirely on Mr. Thurman's recommendation.
Within a few days, Mr. Riggs noticed spots on the leaves and fruit. Eventually, about half of the cherries and more than half of the leaves fell off the trees. Mr. Thurman later testified, "{W}e believe that it was Malathion injury." Ellen Bentley, a diagnostic plant pathologist with Washington State University, diagnosed the problem as "{p}robable Malathion injury." Mr. Riggs' cherry harvest, predicted earlier in the spring to be 120 tons, actually was approximately 44 tons.
In April 1993, Mr. Riggs filed a complaint against Bleyhl, alleging breach of implied and express warranties, unlawful recommendation and sale, product liability failure to warn, and violation of the Washington Consumer Protection Act. He amended the complaint in June 1993, alleging the same causes of action but adding Helena as a defendant. Mr. Riggs' amended complaint alleged in pertinent part:
V. THIRD CAUSE OF ACTION
Unlawful Recommendation and Sale
5.2 Cythion, manufactured by Helena Chemical Company, was a pesticide required by law to be registered with the director of the Department of Agriculture of the State of Washington, pursuant to RCW 15.58.050.
5.3 Cythion was not registered at the time of Bleyhl's recommendation and sale to Riggs.
5.4 Bleyhl's recommendation and sale of Cythion to Riggs constituted a per se violation of RCW 15.58.150, and proximately caused Riggs' damages.
5.5 Helena's distribution and sale of Cythion to Bleyhl constituted a per se violation of RCW 15.58.150, and proximately caused Riggs' damages. VI. FOURTH CAUSE OF ACTION Product Liability Failure to Warn
6.2 Bleyhl had a duty to warn purchaser-users of Cythion, particularly Riggs, who was known to Bleyhl to be an inexperienced cherry orchardist, of the proper manner in which to apply the Cythion, and the risks of damage to his cherry crop in the event Cythion was not applied in a proper manner. Bleyhl breached this duty by not so informing Riggs of the proper manner of application of Cythion, and the correlative risk of improper application.
6.3 Helena and Bleyhl's breach of their duty to warn Riggs was a proximate cause of Riggs' damages, and Helena and Bleyhl are strictly liable to Riggs for his damages.
6.4 Helena had a duty to warn end-users of Cythion, including Riggs, of the proper manner in which to apply the Cythion, and the risks of damage to his cherry crop in the event Cythion was not applied in a proper manner. Riggs applied the Cythion in accordance with Therman's {sic} recommendation, but if the manner of application was a cause of damage to Riggs' cherry crop, the proximate cause of such damage was t
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