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Landowner Hiring Independent Contractor to Spray Herbicide is Liable for Contractor’s Negligence

The Wisconsin Supreme Court has been asked to review a recent Wisconsin Court of Appeals decision holding that a property owner can be liable for damage caused to a neighbor’s trees and shrubs when the property owner’s contractor negligently applies an herbicide that drifts onto the neighbor’s property.  The Court of Appeals’ decision reversed a trial court’s ruling that the property owner was not liable to the neighbor for the negligence of an independent contractor.  Brandenburg v. Luethi, Appeal No. 2012AP2085 (Ct. App. April 23, 2013).  The decision is a reminder that a party who hires an independent contractor to perform “inherently dangerous” work can be held liable for the contractor’s negligence, even though the hiring party may have little or no control over the contractor’s actions.

A property owner (Robert Luethi) hired an independent contractor (Briarwood Forestry Services, LLC) to spray an herbicide on one of Luethi’s pastures that had become overgrown with brush.  Luethi’s property is adjacent to property owned by Kelli and Bruce Brandenburg.  Several days after Briarwood’s application of the herbicide, the Brandenburgs noticed defoliation of trees, ornamental shrubs and perennials on their property.  The Brandenburgs sued Luethi and Briarwood, contending that Briarwood had negligently applied the herbicide.

The general rule of law in Wisconsin is that a party (such as Luethi) who hires an independent contractor (such as Briarwood) to perform a task is not liable to a third party (here, the Brandenburgs) for damages arising from the contractor’s negligence.  The rule is based on the fact that a party hiring an independent contractor typically has no control over the manner in which a contractor performs the requested services.  There is, however, an exception to the general rule when a party hires a contractor to provide services that are inherently dangerous.  The rationale for the exception is that a party seeking an inherently dangerous service should not be able to escape liability by hiring a contractor.  Thus, the Brandenburgs’ right to recover damages from Luethi turned on whether the application of an herbicide constituted an inherently dangerous activity.  

The Circuit Court of Trempealeau County ruled that the application of an herbicide was not an inherently dangerous activity, citing a Kansas decision involving similar facts.  The Wisconsin Court of Appeals reversed, finding that the Kansas decision was not consistent with Wisconsin law.  According to the Court of Appeals, Wisconsin Supreme Court precedent establishes that an activity is inherently dangerous if two conditions are satisfied:

  • The activity must pose a naturally expected risk of harm; and
  • It must be possible to reduce the risk to a reasonable level by taking precautions.  

The two conditions were satisfied here, the Court of Appeals reasoned, because the undisputed facts demonstrated that spray application of an herbicide carried with it an inherent risk that the herbicide might drift onto neighboring property, but that the risk could be reduced to a reasonable level by taking certain precautions.  Consequently, the Brandenburgs were entitled to pursue their claim against Luethi.  The Court of Appeals remanded the case to the trial court for a trial to determine whether in fact Briarwood had acted negligently when applying the herbicide.  

Luethi and his insurer have filed a petition for review in the Wisconsin Supreme Court.  They assert that Supreme Court review is warranted because, among other things, the Wisconsin case law addressing what constitutes an “inherently dangerous” activity is confusing and inconsistent.  They also contend that the spraying of a herbicide does not present any peculiar or unusual risk that warrants characterizing it as inherently dangerous.  

Whether or not the Supreme Court accepts review, this case demonstrates that a party who retains an independent contractor can be liable for injuries or damages caused to third parties if the work involves inherently risky activities.  If the Court of Appeals is correct that the employing party is liable whenever the contractor is performing work where there is “a naturally expected risk of harm,” there are likely many instances where the employing party will share liability for any injury or damage caused by the contractor.  To reduce this risk, the employing party should always confirm that its contractor has insurance by obtaining a certificate of insurance that names the employing party as an additional insured.


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