Gresser v. Reliable Exterminators, Inc.

160 N.E.3d 184

Elizabeth GRESSER, Individually, John Gresser and Janice Gresser Individually and as Parents and Natural Guardians of Rebekah Gresser, Appellants-Plaintiffs,

v.RELIABLE EXTERMINATORS, INC., Appellee-Defendant

Court of Appeals Case No. 79A05-1711-CT-2621

Court of Appeals of Indiana.

FILED September 25, 2020

Attorneys for Appellants: Roger L. Pardieck, Karen M. Davis, The Pardieck Law Firm, Seymour, Indiana, Michael J. Stapleton, Brian A. Karle, Ball Eggleston, PC, Lafayette, Indiana

Attorneys for Appellee: Julie Blackwell Gelinas, Maggie L. Smith, Darren A. Craig, Frost Brown Todd LLC, Indianapolis, Indiana

May, Judge.

[1] Elizabeth Gresser, her parents John and Janice, individually and as parents and natural guardians of Rebekah Gresser, (collectively, "the Gressers") appeal the trial court's denial of their motion to correct error following a jury verdict in favor of Reliable Exterminators, Inc. ("Reliable"). The Gressers present two issues, which we consolidate and restate as whether the trial court abused its discretion in denying the Gressers' motion to correct error, which asked the court to reconsider its denial of the Gressers' request for a jury instruction delineating statutes related to pesticide application. Finding no abuse of discretion, we affirm.

Facts and Procedural History

[2] On January 31, 2000, Robert Hanstra, the owner of Reliable Exterminators, Inc. ("Reliable"), inspected a vacant house (hereinafter "the House") at the request of a realty firm. On February 11, 2000, a Reliable termiticide technician, David Neal, treated the House using a Dursban TC solution (hereinafter "Dursban"). While Dursban was approved by the Environmental Protection Agency ("EPA") for residential use at the time, it contains a neurotoxin, chlorpyrifos, and has a distinct odor to warn of chlorpyrifos in the air. Dursban came with extensive instructions for proper usage because it should not be allowed to seep into a house or be blown into living spaces through air ducts. Neal, however, did not follow the instructions on the Dursban label that required applicators to have an assistant watch for leaks during application, seal basement wall cracks before use, turn the furnace off prior to application, examine ductwork and fix leaks, as necessary, and lay down a plastic vapor barrier after spraying in crawl spaces.

[3] The Gressers bought the House in May 2001. They noticed an odor in the House prior to purchase, but they were assured it was only because the House had been closed up for a period of time. Elizabeth and Rebekah, who both were under five years old at the time, exhibited "unremitting flu-like symptoms, excessive secretions, ear infections, vomiting, diarrhea, fatigue, rashes, and other problems" while the family lived in the house. (Br. of Appellant at 21 (citing Tr. Vol. 9 at 131-36, Vol. 3 at 141, 143, 149, 152-62, 165-68, & Vol. 11 at 199-202).) The odor in the House never subsided, and the Gressers vacated the House in June 2002. The Gressers contacted, amongst others, the EPA and the Indiana State Chemist's Office ("ISC") to determine whether the House contained dangerous substances. Tests revealed varying levels of chlorpyrifos throughout the House.

[4] In March 2004, the Gressers filed a complaint against Reliable for negligent application of Dursban to the House and alleged the Reliable caused injuries to their daughters. Reliable filed a motion for summary judgment, which the trial court denied. On appeal following the summary judgment ruling, the Court of Appeals held, in relevant part, that the trial court correctly denied Reliable's motion to exclude testimony from the Gressers' expert witness; that the Federal Insecticide Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. sec. 136j(a)(2)(G), did not preempt the Gressers' claims against Reliable; that Reliable owed the Gressers a common-law duty to warn them of the Dursban application; and that the Gressers' access to punitive damages was a question of fact for trial. Gresser v. Dow Chemical Co., Inc. , 989 N.E.2d 339 (Ind. Ct. App. 2013), reh'g denied , trans. denied .

[5] On April 7, 2015, the Gressers filed an amended complaint that alleged Reliable was negligent both in its application of Dursban and in its failure to warn the Gressers of the "nature of the product." (Appellants' App. Vol. II at 71.) The trial court scheduled a jury trial for May 15, 2017. On April 11, 2017, the Gressers filed proposed final jury instructions that included an instruction to inform the jury of the legal impact of violating FIFRA:

When the events in this case happened, a federal statute, 7 U.S.C sec. 136j(a) 2 )(G) [sic] of the Federal Insecticide, Fungicide and Rodenticide Act provided as follows:

Sec. 136j. Unlawful acts.

(a) In general.

(2) It shall be unlawful for any person –

(G) to use any registered pesticide in a manner inconsistent with its labeling.

If you find from the greater weight of the evidence that person or company violated U.S.C. sec. 136j(a)(2)(G) on the occasion in question and that the violation was not excused, then you must decide that person or company was negligent.

Compliance with the statute, however, does not prevent a finding of negligence where a reasonable person or company would take additional precautions.

(Id. at 194.) Reliable did not object to that proposed instruction before trial.

[6] The trial court conducted a jury trial from May 15, 2017, to June 15, 2017. Elizabeth and Rebekah, who were nineteen and sixteen, respectively, at the time, testified at trial. On June 14, 2017, as trial ended, the Gressers requested a final jury instruction to explain the legal impact of violating Indiana's pesticide use statute, Indiana Code section 15-3-3.6-14 :

When the events in this case happened, Indiana Code Section 15-3-3.6-14 provided in part as follows:

It is a violation for a pest control company to do the following:

1) Recommend, use or supervise the use of any registered pesticide in a manner inconsistent with its labeling approved by the United States Environmental Protection Agency or Indiana State registration for that pesticide; or

2) Operate in a careless or negligent manner; or

3) Use a restricted pesticide without having a licensed applicator or a licensed certified operator in direct supervision.

If you decide from the greater weight of the evidence that a company violated Indiana Code Section 15-3-3.6-14, then you must decide that the person and/or company was negligent.

Compliance with the statute, however, does not prevent a finding of negligence where a reasonable company would take additional precautions.

(Id. at 79.) Reliable objected to the Gressers' proposed instructions. After hearing argument, the trial court determined it would not give jury instructions based on the statutory language, but it would permit the Gressers to argue that Reliable's violation of the statutory requirements demonstrated Reliable had breached its common-law duty to the Gressers. The Gressers so argued in closing arguments. The jury found in favor of Reliable, and the trial court entered judgment thereon.

[7] The Gressers filed a motion to correct error and request for a new trial that asserted the trial court erred by not giving a jury instruction based on either the state or federal statute. The parties appeared for a hearing on the Gressers' motion, after which the court denied the motion in an order that found: "The court has examined the instructions as tendered and considered the totality of the circumstances and evidence presented and finds that the pending Motion should be denied." (Id. at 65.)

Discussion and Decision

[8] Because a number of arguments herein are based on the parties' divergent understandings of "negligence per se ," we begin our analysis with clarification of that term under Indiana law. Generally speaking, "the unexcused violation of a statute or ordinance constitutes negligence per se if the provision (1) ‘protects the class of persons in which the plaintiff is included’ and (2) ‘protects against the type of harm [that] has occurred as a result of the violation.’ " Stachowski v. Estate of Radman , 95 N.E.3d 542, 544 (Ind. Ct. App. 2018) (quoting City of Fort Wayne v. Parrish , 32 N.E.3d 275, 277 (Ind. Ct. App. 2015), trans. denied ).

[9] Be that as it may, to succeed in a negligence action, a plaintiff still must demonstrate three elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; and (3) the breach proximately caused the plaintiff's injuries, id. , and "the doctrine of negligence per se doesn't concern the duty element of a negligence action." Id. (emphasis added).

"In a negligence per se action, the statute [or ordinance] supplies a defendant's standard of care—the second element in a tort claim. The negligence per se defendant already owes a duty to use reasonable care without reliance on the statute [or ordinance]." F.D. v. Ind. Dep't of Child Servs. , 1 N.E.3d 131, 143 n.12 (Ind. 2013) (Rush, J., dissenting) (citing 1 Dan B. Dobbs et al., The Law of Torts § 148 (2d ed. 2011) (explaining that negligence-per-se defendant "must be under a duty to use reasonable care; if he is not, violation of the statute cannot prove breach of duty") and Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 38 cmt. d (2012) (explaining that negligence-per-se defendant is subject to duty of reasonable care "even without reliance on the statute")). In short, a plaintiff cannot rely on the doctrine of negligence per se to satisfy the duty element of a negligence claim.

Id. at 544-45 (emphases added).

[10] Rather, to satisfy the duty element of a negligence claim, a plaintiff must demonstrate that a defendant had a duty toward the plaintiff that arose either at common law or by statute. Id. at 543. If a defendant had an existing common-law duty of reasonable care, and if a plaintiff argues the defendant's violation of a statute or ordinance proves the breach of that...