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J. A11026/98 DAVID DIFFENDERFER v. RICHARD STANER AND LUELLA STANER, H/W AND STEVEN STANER APPEAL OF: RICHARD STANER AND LUELLA STANER, Appellants : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 523 Harrisburg 1997

Appeal from the Judgment Entered May 2, 1997, in the Court of Common Pleas of York County Civil Division, No. 92-SU-04689-01

BEFORE: CAVANAUGH, POPOVICH, AND FORD ELLIOTT, JJ. **PET. FOR REARGUMENT DENIED 01/20/99** OPINION BY FORD ELLIOTT, J.: FILED: November 12, 1998 Appellants, lessors of a dairy farm, bring this appeal from a judgment entered in favor of David Diffenderfer, the farm's lessee. Because we find that the trial court erred as a matter of law when it allowed the strict liability and nuisance claims against appellants to go to the jury, we vacate the judgment and enter judgment n.o.v. as to those two counts. We also remand for a new trial as to Richard Staner on the negligence count.1 Appellants claim trial court error in the

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Steven Staner did not file an appeal.

J. A11026/98 denial of their post-verdict motions; therefore, we first set forth our proper standard and scope of review. The Pennsylvania Supreme Court set forth the proper standard for reviewing a denial of motion for judgment n.o.v. in Wenrick v. Schloemann-Siemag, 523 Pa. 1, 564 A.2d 1244 (1989), as follows: [T]he proper scope of review for an appellate court examining a denial of judgment n.o.v., according to the longstanding rule, is whether, reading the record in the light most favorable to the verdict winner and granting him the benefit of every favorable inference, there is sufficient competent evidence to support the verdict. Id., 564 A.2d at 1246. Vargo v. Koppers Co., 452 Pa.Super. 275, 817 (1996), reversed on other grounds, Additionally: There are two bases upon which a j.n.o.v. can be entered: one, the movant is entitled to a judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Simmons v. Pacor, Inc., 543 Pa. 664, , 674 A.2d 232, 236 (1996). In contrast: , 681 A.2d 815, Pa. , 715 A.2d 423 (1998).

Appellate review of a trial court's decision to grant or deny a new trial is subject to an abuse of discretion standard. Chiaverini v. Sewickley Valley Hospital, 409 Pa.Super. 630, 598 A.2d 1021 (1991). The power to grant

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J. A11026/98 a new trial lies inherently with the trial court and we will not reverse its decision absent a clear abuse of discretion or an error of law which controlled the outcome of the case. Spang & Co. v. U.S. Steel Corp., 519 Pa. 14, 545 A.2d 861 (1988). Ferguson v. Panzarella, 445 Pa.Super. 23, , 664 A.2d 989, 991 (1995),

reversed on other grounds, 549 Pa. 109, 700 A.2d 927 (1997). With these standards in mind, we set forth the factual and procedural history of the case. During the 1970's, Steven Staner, son of Luella and Richard Staner, farmed his parents' farm. In 1978, Steven purchased Thimet, a highly toxic insecticide containing phorate, used to kill corn rootworm. In 1980, parents and son entered into a partnership agreement to farm the Staner farm. The partnership was dissolved in 1981 and Steven ceased his involvement in farming. From 1981 until the present, no one used the Thimet. In 1985, the United States Environmental Protection Agency listed phorate as a restricted-use pesticide, which could only be purchased by a person with a restricted-use license. (R.R. at 311a.) In May of 1991, David Diffenderfer ("tenant") entered into a lease agreement with Mr. and Mrs. Staner ("lessors") to lease the dairy farm, consisting of a dairy barn, a hay barn, a pole barn in which equipment was stored, and a house. (R.R. at 63a.) Before tenant took possession, Mr. Staner auctioned off most of the equipment in the pole barn with the exception of a corn picker. (R.R. at 132a-133a.)

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J. A11026/98 In July 1991, tenant took possession of the farm, moving his farm equipment and fuel into the pole barn, and bringing or purchasing a total of 90 head of cattle. (R.R. at 134a-135a, 119a-120a.) In February 1992, tenant's farmhands dumped a load of ear corn in the pole barn because the entrance to the hay barn was blocked. The corn was dumped seven or eight feet from some granular material that had been spilled on the dirt floor of the barn ever since tenant moved in, which he assumed was fertilizer. (R.R. at 84a-86a, 139a-140a.) Tenant had the corn ground at the local feed store. On Wednesday, February 26, 1992, tenant took the last of the corn to the feed store to be ground, and then had his farmhand feed it to the cows while tenant began milking. (R.R. at 89a-92a.) The cows became violently ill. Fifty-seven cows died, and the rest had to be sold at less than market value because they could no longer be used for milking, having been contaminated. (R.R. at 93a-100a, 107a-109a.) David Scott, an agronomic products inspector employed by the Pennsylvania Department of Agriculture, was assigned to investigate the incident. He first visited the farm on February 28, 1992. When he returned to the farm on March 12, 1992 to retrieve statement forms he had left, he also examined a pile of granular material on the floor of the pole barn. In the pile, he found a scrap of paper bearing directions for applying a pesticide. (R.R. at 305a-307a.) Laboratory tests

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J. A11026/98 conducted on samples of the corn and soil sent for analysis by the milk sanitarian, Donald Lerch, revealed this pesticide contained phorate. (R.R. at 285a-286a, 308a.) In his answer to tenant's request for admissions, Steven Staner stated that he purchased one or two 80-pound bags of Thimet in 1978 and stored the remainder of the single bag of Thimet adjacent to a Massey Harris corn picker in the pole barn on the Staner farm. (R.R. at 565a.) During David Scott's March 12, 1992 visit to the farm, Richard Staner provided the following statement: I, Richard Staner, own the farm Dave Diffenderfer rents. The insecticide was stored by a corn picker for at least 15 years. Corn picker wasn't used for that amount of time. I sold my machinery in June, 1991, and the storage [area] was cleaned up. The corn picker was not moved. Partial bag was forgotten about with the junk piled all around. R.R. at 318a. Richard Staner also said he thought the bag may have been knocked over or run over at some point, but was unsure. (R.R. at 321a.) Tenant sued lessors as well as Steven Staner, bringing claims of negligence, nuisance and strict liability against all three. (R.R. at 20a-25a.) The trial court granted Steven Staner's motion for compulsory nonsuit as to the strict liability and nuisance counts, but denied lessors' motions for compulsory nonsuit and directed verdict. As a result, the trial court instructed the jury on negligence as to all parties, and on nuisance and strict liability as to lessors only.

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J. A11026/98 On April 4, 1996, the jury returned a verdict in favor of tenant in the amount of $119,200. In its answers to interrogatories, the jury found lessors Richard and Luella Staner strictly liable, and found that their conduct constituted a nuisance. The jury also found that lessor Richard Staner and Steven Staner were negligent, and apportioned 30% of the negligence to Richard and 70% to Steven. Lessors and Steven timely filed post-verdict motions for j.n.o.v. and for a new trial. These motions were denied and lessors filed this timely appeal. We first address lessors' issues A and E, as they are interrelated. In issue A, lessors claim that tenant failed to meet his burden of proving that the storage of phorate was an abnormally dangerous activity for which lessors could be held strictly liable. In issue E, lessors claim the trial court erred when it instructed the jury that "failure to control the leakage of the stored pesticide"2 was an

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The complete jury instruction on this issue follows: First let me explain to you the strict liability. This arises from what is known as ultrahazardous activity. Anyone who carries on an ultrahazardous activity, and I am ruling, as a matter of law, includes the failure to control the leakage of the stored pesticide here involved, which was engaged in, according to the Plaintiff by the Defendants, Richard Staner and Luella Staner, is liable for any damage or injury caused by that activity, even though the Staners used the utmost care to prevent any harm from occurring. In this instance, we apply the rule of absolute liability, which imposes legal responsibility on the Defendants, Richard and Luella Staner, regardless of the amount of care they have exercised in the conduct of this ultrahazardous activity.

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J. A11026/98 ultrahazardous activity as a matter of law, for which lessors could be held strictly liable if the jury determined that this failure was a substantial factor in bringing about tenant's harm. (R.R. at 671a.) Because we find that the trial court erred in submitting the strict liability claim to the jury, we likewise find that the trial court erred in its jury instruction. Furthermore, even if we were to find that the strict liability claim was properly submitted to the jury, we would find error on the part of the trial court because its instruction focused the strict liability claim on the leaking of the pesticide, not on its storage. Our findings are based in part upon this court's recent decision in Smith v. Weaver, 445 Pa.Super. 461, 665 A.2d 1215 (1995). In Smith, the Smiths purchased property in 1981 on which Weaver had operated a gasoline station. Specifically included in the purchase price of $70,000 were three 4,000-gallon underground storage tanks. In 1991, the Smiths undertook removal of the tanks, at which time they discovered two additional tanks, both of which were leaking water and waste materials. Further inspection by the Pennsylvania Department of Environmental Resources revealed contaminants and pollutants in the soil

Therefore, if you find that the failure to control the leakage of this stored pesticide by the Defendants was a substantial factor in bringing about the harm to the Plaintiffs, your verdict must be in favor of the Plaintiff and against the Defendants, Richard and Luella Staner. R.R. at 670a-671a (emphasis added).

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J. A11026/98 surrounding the tanks. The DER ordered the Smiths to dispose of the tanks and the contaminated soil at a cost of approximately $70,000. Id. at 1217. The Smiths sued Weaver, alleging inter alia, strict liability because the unknown underground storage tanks were abnormally dangerous. According to the Smiths' theory of the case, underground storage tanks that are leaking a hazardous substance are abnormally dangerous. Id. at , 665 A.2d at 1219. The trial court , 665 A.2d at 1216-

dismissed this count, and this court affirmed the dismissal. As the Smith court opined: The buyers would urge us to consider not whether underground tanks are abnormally dangerous, but rather whether underground storage tanks which are leaking a hazardous substance, are abnormally dangerous. By so phrasing the issue the buyers are seeking to have us view the results of the activity, instead of the activity itself. Although a dangerous condition may have later developed, or harm may have occurred, the proper focus is on the activity itself, the storage of potentially hazardous substances in an underground tank. Id. (emphasis added). The Smith court relied in part on this court's decision in Melso v. Sun Pipe Line Co., 394 Pa.Super. 578, 576 A.2d 999 (1990), appeal denied, 527 Pa. 667, 593 A.2d 842 (1991). In Melso, the trial court found as a matter of law that operating a petroleum pipeline under a housing development was an abnormally dangerous activity. This court criticized the trial court, however, because it -8-

J. A11026/98 focused on the harm that may occur when a break occurs in a petroleum pipeline running under a housing development. Id. at , 576 A.2d at 1003. According to

the Melso court, the pipeline, which was in place before the housing development was built, was not abnormally dangerous because it was a common activity in a highly industrialized society and was not inappropriately located at the time it was installed. Id. We likewise find that storage of a pesticide, even a controlled pesticide, on a farm is not an abnormally dangerous activity as a matter of law. "The court must determine as a matter of law whether an activity is abnormally dangerous so that strict liability will be imposed." Id., citing Albig v. Municipal Authority of Westmoreland County, 348 Pa.Super. 505, 502 A.2d 658 (1985). The parties and the trial court all rely on the Restatement (Second) of Torts

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