Vineyard loses claims against U.S. for independent contractor’s misapplication of herbicide that destroyed vines and rendered them useless for three years where U.S. exercised no direct control over contractor and herbicides present no “special risks.”

E&J Gallo brought this suit against the United States and the US’s contractor, Pestmaster after the US (through the Bureau of Reclamation) hired Pestmaster as a contractor to provide weed abatement services for facilities and properties in the Central Valley Project.

Under the contract with the government, Pestmaster had discretion for determining when, how, and what herbicide to apply. The contract required Pestmaster to abide by applicable federal and state laws and to submit a spray management work plan before the start of work. The requirements included submission of a plan to “prevent the unauthorized release of any chemicals including clean-up procedures to be undertaken allowing for the protection of … neighbours/adjoining property owners.” 

The allegations of the complaint are that Pestmaster chose Method®240SL to prevent weeds and that Method is harmful to grape vines and grapes. The label for Method explicitly warns users that “[a]pplications made where runoff water flows onto agricultural land may injure or kill crops such as . . . grapes.” The warning also provides users should not apply Method “during periods of intense rainfall or where prevailing soils are either saturated with water or of a type through which rainfall will not readily penetrate.”

Despite these warnings, Pestmaster allegedly applied Method on the bank of the Folsom South Canal adjacent to Silva Ranch, a Gallo grape vineyard, during a period of intense rainfall. The herbicide then washed down the bank and into the vineyard, where it was taken up by the grapevines. It rendered the grapes unusable in the 2017, 2018, and 2019 growing seasons, resulting in a total loss of more than $200,000. 

Gallo sued the USA and its contractor. The lawsuit against the USA was recently dismissed by this opinion from the US District Court. The court found that since the USA did not exercise direct daily control over its contractor and the application of herbicides does not amount to a “special risk” under the “peculiar risk doctrine”:

The United States cannot be held vicariously liable for the negligent acts of its independent contractors. United States v. Orleans, 425 U.S. 80… (noting the statute’s definition of federal “employees” excludes “any contractor with the United States”). This is referred to as the “independent contractor” exception. In its complaint, plaintiff does not allege that the United States or one of its federal employees is directly liable for the damage to its grapes; indeed, its allegations are confined to vicarious liability alone. Accordingly, plaintiff’s claims against the United States fail on their face.

Nevertheless, “[t]he independent contractor exception . . . has no bearing on the United States’ FTCA liability for its own acts or omissions.” Edison, 822 F.3d at 518 (emphasis original). If the United States exercised control over Pestmaster such that Pestmaster cannot be said to be “independent,” the United States could be found liable for Pestmaster’s actions. See Orleans, 425 U.S. at 814. Such a relationship requires “substantial supervision over the day-today operations of the contractor.” Autery v. United States, 424 F.3d 944.

Here, it does not appear that the United States exercised the degree of substantial control necessary for Pestmaster or its employees to be considered employees of the government. As the Ninth Circuit has recognized, “[c]ontractual provisions directing detailed performance generally do not abrogate the contractor exception.”… While the Scope of Work provides Pestmaster must submit a Spray Management Work Plan before the start of work, Pestmaster retains ultimate discretion about when to spray, what to spray, and how to spray…. While the contract and the Scope of Work establish a broad, general compliance framework, there is no showing that the United States controlled the day-to-day operations of Pestmaster. See Letnes, 820 F.2d at 1519 (holding “detailed regulations and inspections are [not] evidence of an employee relationship.”) Accordingly, the United States cannot be held liable for Pestmaster’s actions.

With regard to the third claimed duty under the peculiar risk doctrine, a “peculiar risk” is a risk particular to “the work to be done, arising either from the nature or the location of the work and against which a reasonable person would recognize the necessity of taking special precautions.” Privette v. Superior Court, 5 Cal 4th 689. California’s peculiar risk doctrine is “an exception to the general rule that [the government] is not liable for torts committed by an independent contractor.” Myers v. United States, 652 F.3d 1021… The United States can be found directly liable for its own negligence when “it fails to ensure that an independent contractor takes adequate safety precautions” when the work to be performed involves “special dangers.” Id.

[Gallo] does not cite any California authority to support its contention that spraying herbicides involves a “special danger” or is an inherently dangerous activity that would trigger application of the peculiar risk doctrine…. While plaintiff cites cases from other jurisdictions, most are over sixty years old and are of minimally persuasive value.  Accordingly, plaintiff’s peculiar risk theory fails because the application of pesticides has not been recognized as a “special danger” under California law. Because the FTCA’s independent contractor exception applies, this court cannot exercise subject matter jurisdiction over plaintiff’s claims.

A bit disappointing for Gallo. The US was dismissed from the case and the claims against Pestmaster proceed, but the fact that the lack of oversight on the part of the government allows them to escape liability should be duly noted for those involved in agricultural endeavors close to government lands.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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