Thursday, August 15, 2024

Lawsuit against pesticide applicator reinstated

 

The SD Supreme Court handed down one decision this morning, holding, inter alia:

 

1)    Lawsuit against Pesticide Applicator reinstated

 

 

Summary follows:

 

JUCHT v. SCHULZ, 2024 S.D. 46: Soybean farmed sued neighbor for crop damage arising out of neighbor’s spraying of pesticide which drifted.  The trial court dismissed the lawsuit on the basis of “failure to state a claim” because the Complaint did not allege compliance with SDCL 38-21-46’s thirty (30) day notice requirement for actions against a “pesticide applicator.”  The SD Supreme Court reversed, acknowledging that farmer’s Complaint’s alleged, “actual notice of DANR’s investigation of [farmer’s] complaint” filed by farmer with the South Dakota Department of Agriculture and Natural Resources (DANR).  And, by further holding:

 

[¶9.] … While SDCL 38-21-46 requires that the person claiming damage give notice of the alleged damage to the pesticide applicator, failure to provide such notice does not bar the claimant from bringing their claim.∗ Instead, a claimant is barred from seeking recovery under SDCL 38-21-47 when the claimant “fails to allow entry” to the pesticide applicator to observe and inspect the alleged damage.

 

In the footnote corresponding to the “*” in the language above, the Court distinguishes the language of  this pesticide applicator statute (SDCL 38-21-46) from the language of SDCL 3-21-2 which imposes a 180 notice requirement for suits against a public entity.

This ruling is unanimous (5-0) with opinion authored by Justice Myren.

 

This decision may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .