Wisconsin Supreme Court Finds that Spraying Herbicides is Inherently Dangerous Activity Subjecting Property Owner to Possible Liability for Independent Contractor’s Torts.

In this case, some neighbors sued a property owner for damages allegedly incurred to their trees as a result of herbicides sprayed on the property owner’s property by an independent contractor that he had hired. The circuit court found that spraying herbicides was not an “abnormally dangerous” activity or “ultrahazardous” and that, as such, the property owner owed no duty to the neighbors and only the independent contractor could be liabile for any damages. On appeal, the appellate court reversed, finding that the circuit court had applied the wrong standard. The relevant question, the appellate court ruled, was whether the activity was “inherently dangerous.” In affirming the appellate court’s ruling, the Wisconsin Supreme Court held that spraying the herbicides was an inherently dangerous activity because (1) it posed a naturally expected risk of harm and (2) it was possible to reduce the risk to a reasonable level by taking precautions. The Court ruled that the inherently dangerous character of the activity rendered the general rule of non-liability for an independent contractor’s torts inapplicable.  The Court found that the negligence action could now proceed, with the neighbors having the opportunity to show that the property owner failed to use ordinary care with respect to the activity.  Brandenburg v. Briarwood Forestry Servs., LLC, No. 2012AP2085, 2014 WI 37, 2014 Wisc. LEXIS 290 (Jun. 12, 2014).