This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-480

Robert Honek, et al.,

Appellants,

vs.

Steve Kovar,

Respondent,

Richard Altendorf, et al.,

Respondents,

Richard Love,

Defendant.

Filed December 17, 1996

Affirmed

Schumacher, Judge

Polk County District Court

File No. C894493

Jerry J. Mack, Ralph F. Carter, Moosbrugger, Dvorak & Carter, 219 South Third Street, Post Office Box 5159, Grand Forks, ND 58206-5159 (for Appellants)

Gerard D. Neil, Scott R. Hasbrouck, German, Neil and Hasbrouck, Ltd., 208 Third Avenue Northwest, Post Office Box 528, East Grand Forks, MN 56721 (for Respondent Kovar)

E. Thomas Conmy, III, Douglas W. Gigler, Nilles, Hansen & Davies, Ltd., 1800 Radisson Tower, Post Office Box 2626, Fargo, ND 58108-2626 (for Respondents Altendorf et al.)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellants Robert Honek and George Staveteig alleged that a herbicide was negligently sprayed on fields near their sugar beet crops. Honek and Staveteig challenge the trial court's findings that (1) the crop dusting pilot did not breach a duty to spray reasonably and prudently, and (2) they failed to prove the aerial application damaged their crops. They also appeal the trial court's decisions regarding qualification of expert witnesses, valuation of damages, and liability of the farmer who hired the pilot. We affirm.

FACTS

Honek, Staveteig, and respondent Steve Kovar are farmers. Respondent Richard Altendorf is a licensed aerial crop sprayer and owner of R.C.A. Aviation.

In May 1991, Kovar noticed that two of his fields--one with barley and one with wheat--were infested with weeds. After consulting with agri-chemical salesman Lyle Hangsleben, Kovar decided to apply a herbicide known as "Harmony." Harmony is used on small grains and is toxic to broad-leaf crops such as sugar beets. Because some of the fields adjacent to Kovar's fields had sugar beets, Hangsleben suggested Harmony be sprayed only when those fields were not downwind. Honek had three sugar beet fields south and southeast of Kovar's fields. Staveteig farmed a sugar beet field that was west of Kovar's and was separated by a 55-acre summer fallow field.

Kovar hired Altendorf to spray his two infested fields. Kovar told Altendorf about the sugar beet fields to the south, southeast, and west, and directed Altendorf to spray when there was a south wind. On June 1, 1991, Altendorf said he intended to spray Kovar's fields that day. Kovar told Altendorf not to spray because there was a north wind. At noon, Altendorf noted that the wind direction had changed from north to northwest. Altendorf began spraying. As a precaution, Altendorf applied Harmony only to the northernmost 50 acres of Kovar's wheat field and the northernmost 30 acres of Kovar's barley field. Altendorf said he read the Harmony label, added a spray retardant to each load of chemicals to reduce drift, dropped a smoke producing device to check wind direction, and repeatedly discharged puffs of smoke while spraying to determine if the wind had changed speed or direction. He also watched the smoke from a fire in a trash barrel on the ground. Altendorf's flight records indicate the wind speed was five miles per hour. Weather records from two other sources indicate the wind speed was 5 to 9 miles per hour and 2 to 10 miles per hour. A third source indicated there were gusts of up to 14 miles per hour.

On June 3, 1991, Altendorf sprayed approximately 55 acres of Kovar's barley fields. His flight records indicate a wind from the east of eight miles per hour. On June 5, 1991, Altendorf sprayed the remaining 25 acres of Kovar's wheat field. His records indicate a south wind of five miles per hour. On June 5, Altendorf used Bronate herbicide rather than Harmony because he was spraying along the southern edge of Kovar's wheat field, which abutted Honek's sugar beet field.

Honek testified that on June 3 or 4 he noticed that the beets in his fields directly south of Kovar's fields were yellow and wilted. A few of Staveteig's sugar beet plants were also wilted and yellowed. Broad-leaf weeds in a ditch separating Kovar's and Honek's fields, however, were unharmed. Dr. Larry Smith of the Northwest Experiment Station at the University of Minnesota, Crookston campus, and Russ Severson, Polk County Extension educator, also inspected Honek's sugar beets fields and concluded that the beets in the fields south of Kovar's fields had been exposed to a sulfonylurea herbicide, such as Harmony. They did not perform laboratory tests nor did they inspect Staveteig's fields. Donald Kieffer, an agricultural superintendent at American Crystal Sugar, testified that he has seen 15 sugar beet fields damaged by Harmony and that he believed Honek's fields were damaged by Harmony.

Honek and Staveteig claimed damages of $31,403 and $26,409 respectively. After a three-day court trial, the trial court concluded that (1) Altendorf was acting outside the scope of his authority when he sprayed the Harmony on June 1, (2) Altendorf did not breach a legal duty to spray in a reasonable and prudent manner, (3) Honek and Staveteig failed to prove that the application of Harmony proximately caused the damage to their sugar beets, and (4) Honek and Staveteig "failed to provide any credible evidence that their respective sugar beet fields were indeed damaged by the acts of Altendorf." The court entered judgment in favor of Altendorf and Kovar. The court later denied Honek's and Staveteig's posttrial motions.

D E C I S I O N

Findings of fact will not be set aside unless clearly erroneous, with due regard given to the trial court's opportunity to judge the witnesses' credibility. Minn. R. Civ. P. 52.01. We will not reverse a finding of fact unless it is "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Northern States Power v. Lyon Food Prods., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). When the trial court acts as the fact-finder, its findings are entitled to the same weight as a jury verdict and will not be reversed merely because a reviewing court views the evidence differently. Tonka Tours v. Chadima, 372 N.W.2d 723, 726 (Minn. 1985).

1. Honek and Staveteig argue that the trial court erred by finding that Altendorf did not breach his duty to spray in a reasonable and prudent manner. They contend this case is analogous to Red River Spray Serv. v. Nelson, 404 N.W.2d 332 (Minn. App. 1987), in which this court concluded there was sufficient evidence that a spray service was negligent because the spraying of a herbicide damaged a soybean crop in a nearby field. Id. at 334. Red River, however, involved a herbicide whose label expressly prohibited aerial application whenever sensitive crops such as soybeans were in the vicinity. Id. at 333. Federal regulations also explicitly prohibited application if the wind was moving five or more miles per hour toward sensitive crops. Id. Evidence in Red River indicated a wind speed of seven to nine miles per hour. Id. Here, the Harmony label did not have the same explicit prohibitions. The label warned that Harmony should not be sprayed if the wind was 10 miles per hour or more. The label stated that if sensitive crops are downwind, "extreme caution must be used even in relatively low wind conditions!" and warned that "[h]igh temperatures, drought and low relative humidity increase the possibility of spray drift."

We conclude the evidence supports the trial court's conclusion that Altendorf acted reasonably and prudently. We note that (1) the evidence as a whole supports a finding that the wind speed was not more than 10 miles per hour, (2) Altendorf exercised caution by spraying only the northernmost part of Kovar's fields on June 1, (3) Altendorf used smoke to continually test wind speed and direction on June 1, (4) Altendorf added a spray retardant to prevent drift, (5) Altendorf used Bronate when spraying near Honek's fields, and (6) nothing in the record indicates that there were high temperatures, drought, or low relative humidity.

2. The trial court concluded that Altendorf's application of Harmony to Kovar's fields was not the proximate cause of damage to the sugar beets. Honek and Staveteig argue that the evidence does not support this conclusion.

A plaintiff bears the burden of showing that it is more probable that a defendant's negligence proximately caused the plaintiff's damages than anything else. Walton v. Jones, 286 N.W.2d 710, 715 (Minn. 1979). Although circumstantial evidence can provide sufficient proof of causal connection, it must be more than merely consistent with a plaintiff's theory of the case. Zinnel v. Berghuis Constr. Co., 274 N.W.2d 495, 499 (Minn. 1979).

While some circumstantial evidence suggests Harmony could have caused the damage to the sugar beets, the evidence also indicates other sources may be the cause of the damage. Because of a sugar beet maggot problem, Honek himself had applied chemicals to his fields using a ground sprayer. The trial court found that the pattern of damage in Honek's field is consistent with an erroneous ground application because there were sharp lines between the damaged and undamaged portions of Honek's fields. Honek testified that he used only one ground sprayer for all his crops even though, according to Staveteig, it is necessary to use different sprayers for different crops to prevent cross-contamination and unintentional application of herbicides. Furthermore, L.B. Davis, a crop damage claims investigator, inspected Honek's fields after the spraying and found unharmed broad-leaf weeds in the ditch separating Kovar's grain field from Honek's sugar beet field. These weeds presumably would have been damaged if exposed to Harmony. Other evidence supporting the trial court's determination includes: (1) no chemical analysis was performed to determine if Harmony actually caused the damage, (2) Smith and Severson found evidence of sugar beet maggots, (3) Smith and Severson did not even inspect Staveteig's field, and Kieffer could not remember if he did, and (4) Davis testified that he did not see symptoms of Harmony damage to Staveteig's field, but he did observe root maggots. Given all of the evidence, we cannot say that the trial court's findings are clearly erroneous.

3. Honek and Staveteig argue that the trial court erred by finding that they, along with David Staveteig, Hangsleben, and Kieffer, were not qualified as experts to testify about the chemical properties of Harmony and its effects on sugar beets. We disagree.

Determining whether a witness qualifies as an expert rests in the discretion of the trial court, and we will not reverse such a decision unless it is clearly wrong. Kastner v. Wermerskirschen, 295 Minn. 391, 394, 205 N.W.2d 336, 338 (1973).

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Minn. R. Evid. 702. A witness may qualify as an expert based not only on formal training, but also based on knowledge gained through occupational experience. Kastner, 295 Minn. at 304, 205 N.W.2d at 338.

We conclude that the trial court was not clearly wrong in its decision that these witnesses were not experts. Honek, Staveteig, and David Staveteig may have occasionally used Harmony in their farming operations, but that does not necessarily give them specialized knowledge to form opinions about the cause of crop damage. Hangsleben testified that while he has seen some crop damage from Harmony, he has not seen "many instances" of it. Kieffer has observed about 15 sugar beet fields damaged by Harmony, but this does not make him an expert about the herbicide's chemical properties.

Because of our decision on these issues, it is not necessary to address Honek and Staveteig's arguments regarding the calculation of damages and whether Altendorf was acting within the scope of his authority when he sprayed Kovar's fields on June 1.

Affirmed.