(concurring in part and dissenting in part).
I 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.
The trial court found that:
Wilcox 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.
Marcak 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.
The court concluded:
1. Stewart is strictly liable to Wilcox for the aerial drift of Defy on application causing damage to his cotton crop.
The 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.
This rule is based upon Restatement (Second) Torts §§ 519 and 520 (1977).
In Thigpen v. Skousen & Hise, 64 N.M. 290, 327 P.2d 802 (1958), New Mexico adopted the rule of liability without fault for “ultrahazardous activities” stated in Restatement Torts, §§ 519 and 520 (1938) at 41 47. The Institute believed that “ultra-hazardous” was misleading and substituted therefor, “abnormally dangerous.” The present reading of §§ 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’d, 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’s 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.
Generally 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:
There 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.]
After reciting the circumstances, the court said:
Under 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.
The 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).
We 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. “An employee is liable in damages to his employer for his negligence or wrongful act resulting in loss to the employer.” 56 C.J.S. Master and Servant § 79 (1948); 53 Am.Jur.2d, Master & Servant, § 108 (1970). The doctrine of strict liability would apply where the work is inherently and intrinsically dangerous.
Under 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, § 524.
Stewart 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.
In reality, the doctrine of strict liability shifts the burden to the field sprayer to prove non-liability. The field sprayer is an “expert” in the field of crop dusting. The burden belongs on him.