SKF Farms v. Superior Court

D.^[1] The chemical spray drifted onto petitioners’ fields causing severe crop damage.

Petitioners sued real parties for damage to their crops, alleging, among other things, the aerial application of 2,4-D is an ultrahazardous activity subject to strict liability (first and fourth causes of action). They also alleged the aerial spraying was done wilfully, maliciously and with a conscious disregard of the probable consequences, thus entitling petitioners to punitive damages (seventh cause of action). Real parties demurred to these causes of action. The superior court sustained the demurrers without leave to amend, ruling as a matter of law crop dusting is not an ultrahazardous activity subject to strict liability. The court also ruled petitioners may plead only a negligence cause of action and therefore are not, as a matter of law, entitled to punitive damages.

A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action (Griffith v. Department of Public Works (1956) 141 Cal.App.2d 376 , 381 [ 296 P.2d 838 ]).

The question presented by real parties’ demurrer in this case is whether crop dusting is an ultrahazardous activity. Although several early decisions from California Courts of Appeal have discussed liability for crop dusting in terms of negligence or nuisance (see Miles v. A. Arena & Co. (1937) 23 Cal.App.2d 680 [ 73 P.2d 1260 ]; Parks v. Atwood Crop Dusters, Inc. (1953) 118 Cal.App.2d 368 [ 257 P.2d 653 ]), no California court has ever squarely addressed the issue of whether crop dusting is abnormally dangerous and therefore subject to strict liability. More recently, several agricultural jurisdictions have confronted the issue and held crop dusting to be ultrahazardous. (See, e.g., Loe v. Lenhardt (1961) 227 Ore. 242 [ 362 P.2d 312 ]; Langan v. Valicopter, Inc. (1977) 88 Wn.2d 855 [ 567 P.2d 218 ]; see also Comment, Crop Dusting: Two Theories of Liability? (1968) 19 Hastings L.J. 476 ; Note, Crop Dusting: Legal Problems in a New Industry (1953) 6 Stan.L.Rev. 69 (suggesting crop dusting is a proper subject for strict liability).)

Section 520, Restatement Second of Torts enumerates the factors to be considered in determining whether an activity is “abnormally dangerous” or “ultrahazardous”: “(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.” Whether a particular activity is abnormally dangerous is to be determined by the court “upon consideration of all the factors listed in this Section, and the weight given to each that it merits upon the facts in evidence.” (Rest.2d Torts § 520, com. /.) Due to the interplay of the various factors, it is impossible to define abnormally dangerous activities. “The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability from the harm that results from it, even though it is carried on with all reasonable care. In other words, are its dangers and inappropriateness for the locality so great that, despite any usefulness it may have for the community, it should be required as a matter of law to pay for any harm it causes without the need of a finding of negligence.” {Id. at § 520, com. f.) Thus, by its very nature, the issue of whether an activity is ultrahazardous cannot be decided on demurrer.

The court here, in ruling on real parties’ demurrer, found crop dusting to be “a matter which is in common usage in connection with the agricultural aspect of the State of California and therefore does not constitute an ultra-hazardous activity.” In making this determination, the court considered only one of six factors and necessarily went beyond the pleadings. Thus, it was error to sustain the demurrer to petitioners’ strict liability causes of action.^[2]

The court also erred in sustaining without leave to amend petitioners’ punitive damages cause of action. Petitioners’ complaint alleges real parties “knew or should have known” the specific facts regarding the dangers of crop dusting. The complaint also states real parties consciously chose to disregard the dangers; elevated their own economic interests above