Keller Farms, Inc. Plaintiff- Appellant
McGarity Flying Service, LLC; Dennis E. McGarity; Michael C. Pemberton; John Doe; John Doe Corporation Defendants Colin V. Stewart, individually and as a Partner of Joint Venturer in Stewco Farms; Brandon G. Stewart, individually and as a Partner or Joint Venturer in Stewco Farms; Faron B. Stewart, individually and as a Partner or Joint Venturer in Stewco Farms Defendants - Appellees Kenny Hulshof; Renee L. Hulshof Defendants
Submitted: September 24, 2019
from United States District Court for the Eastern District of
Missouri - Cape Girardeau
GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
Farms appeals the district court's directed verdict
and the jury's verdict in favor of appellees the
Stewarts. We affirm.
Farms operates a farm in southeast Missouri, where it grows
various crops and maintains a number of both windbreak and
ornamental trees. The Stewarts also operate a farm in
southeast Missouri, to the north and east of Keller
Farms' property. Other farms border, or are in close
proximity to, Keller Farms' property.
April and May 2015, Keller Farms, the Stewarts, and some
operators of neighboring farms applied herbicides to their
fields. The Stewarts hired Dennis McGarity to apply
herbicides via airplane to their fields, which he did on
April 23, 2015. In early May 2015, Keller Farms first
detected herbicidal damage to some of its crops. Around this
time, Keller Farms also noticed damage to some of its trees.
Farms suspected that herbicide drift caused this damage and
submitted a complaint to the Missouri Department of
Agriculture ("Department"), which assigned Yvonne
Barr to investigate the matter. Based on Barr's
investigation, the Department issued a warning letter to
McGarity in February 2016, finding that it was more likely
than not that chemicals he applied to the Stewarts' field
had drifted onto Keller Farms' property. Although
Missouri law empowers the Director of the Department to order
restitution in such circumstances, see Mo. Rev.
Stat. § 281.060.2, the Department opted only to issue
McGarity this warning letter.
Farms subsequently sued McGarity and Michael Pemberton (who
applied herbicides to a different field farmed by the
Hulshofs around the same time McGarity applied herbicides to
the Stewarts' field), alleging negligence, negligence
per se, and statutory trespass under Missouri law
for applying herbicides in a manner that allowed them to
drift onto Keller Farms' property and cause damage to its
crops and trees. Keller Farms later amended its complaint to
add the Stewarts and the Hulshofs to hold them vicariously
liable for the herbicide drift. The district court dismissed
Pemberton from the action after he went bankrupt and
dismissed McGarity and the Hulshofs after Keller Farms
settled with them. The action thus proceeded against the
pretrial order, the district court limited Keller Farms'
statutory trespass count to tree damage, concluding that
Keller Farms could not recover for crop damage under the
plain language of the statute. In a pretrial conference, the
district court also excluded two sets of evidence Keller
Farms proffered: (1) the February 2016 warning letter issued
to McGarity by the Department as well as testimony regarding
the findings and conclusions in the letter from Darryl Slade,
who was at that time the Enforcement Program Coordinator for
the Department; and (2) two warning letters the Department
issued to McGarity regarding other instances where it found
he likely caused herbicide drift. During trial but before
submitting the case to the jury, the district court directed
a verdict for the Stewarts on the statutory trespass claim
because Keller Farms failed to present sufficient evidence of
tree damage. The district court allowed the negligence and
negligence per se claims to go to the jury, which
returned a verdict in favor of the Stewarts on both counts.
district court then entered final judgment in favor of the
Stewarts on all counts. Keller Farms moved for a new trial,
challenging the district court's directed verdict on the
statutory trespass count, its exclusion of evidence, and the
jury's verdict on the negligence and negligence per
se counts. The district court denied the motion. Keller
a diversity case arising out of Missouri. As such, "we
apply state substantive law and federal procedural law."
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