NAAA Mock Trial at 2005 Convention Conveys Professionalism

by: Dennis R. Gardisser, Ph.D. and Darryl Marshall

A mock trial was conducted at the 2005 NAAA Convention to illustrate the importance of professionalism, attention to details, training, experience and the value of excellent records. The NAAA General Session had numerous things to cover, leaving the mock trial with less than one hour to get all points across. Anyone that has ever been in a real trial understands that much more time is needed to establish all the facts. A handout was included at the convention registration to provide many facts that had been established for this trial in order to save time. Copies are available under the convention section at www.agaviation.org.

Agricultural aviation has many ever-changing issues to deal with. Sometimes, when nothing is going your way, a dispute over chemical trespass or performance may leave no recourse except to settle in court!

In this case the allegation is that glyphosate severely damaged small trees, shrubbery and flowers at Triple X Nursery. Damages are claimed to be about three times the operator’s insurance liability limits. The allegations include:

1. That chemical came from an aerial application about 2.5 miles north of the nursery;

2. No “standard of care” was exercised by the applicator;

3. A witness saw the aircraft fly over the nursery – so there may have been leakage; and

4. The chemical label – which stated, “Do not apply when winds are gusty” and “Do not allow material to drift” – was not complied with.

NAAA Mock Trial at 2005 Convention

Joel Smyer makes a point with Tommy Anderson, Operator #2, on the witness stand

One of the allegations was that the winds were gusty. It’s a matter of definition, but the National Oceanic and Atmospheric Administration (NOAA) and the National Weather Service (NWS) defines a gust as a brief sudden increase in wind speed. Generally the duration is less than 20 seconds and the fluctuation is greater than 10 mph.

Two Arkansas operators – Barry Wilson (Operator #1) and Tommy Anderson (Operator #2) – agreed to participate as applicators in the mock trial. Both applicators in the mock trial. Both applicators did a superb job of chemical application on the farm. Operator #2’s business was growing and demanding a lot time, so… attention to detail may have been a bit lacking.

The case for Operator #1, Barry Wilson, did not take much time to resolve. It was obvious that this application was done professionally; all the necessary supporting data had been recorded and no evidence was presented to show that any wrongdoing or label violations had occurred. The investigation also turned up another source – roadside spraying in the immediate area – that might have contributed to the symptoms exhibited by the nursery plants. The jury, six persons selected from the audience, wasted no time with a not guilty verdict once the case was turned over to them.

The case for Operator #2, Tommy Anderson, did not go nearly as well. Several factors were presented and it became obvious very early in the trial that the jury was leaning heavily in favor of the plaintiff. Once this became obvious, the insurance adjuster decided it would be best to work toward a settlement rather than chance what the outcome might be from the court.

Factors that played heavily against Operator #2 are included in the following:

1. Professionalism – Operator not a member of NAAA or state association. It is always hard to explain why one is not a member of the only professional organizations available.

2. Professionalism – No off-season production meetings due to commitments to help with maintenance and work forestry contracts for a little extra cash flow.

3. History – Experienced pilot but two previous drift claims, both settled out of court. May not be a factor in this case, but may be a mental factor that must be overcome with the jury.

4. Records – GPS was not working on this particular day due to problems with differential system. GPS records can be, and almost always are, beneficial in determining the application facts.

5. Weather records/evaluations – Ground crew forgot to order smoker oil, so no smoker help. Bad luck always comes along at the worst time!

6. Weather precautions – No ground observer in the field. Physical measurements and on-site evaluations really help.

7. Excellent spray nozzles – CP09/125/5 with dropped boom system. This is actually good, but it is implied that the operator does not know the best way to set them up because he can’t urn the models.

8. Operations with no suck back – Utilizing a pump brake to stop flow rather than a spray valve shut-off. No positive boom shut off. No positive boom shut off.

9. Suck back – Witness indicated that spray could be seen coming from the aircraft for several seconds as it exited the field from a spray pass. With no negative pressure – suck back, on the boom – this might be possible.

10. Records – Nozzles: CP09/125/5 – psi unknown.

11. Professionalism – No utilization of available models. Operator isn’t computer literate.

12. Records – Time: Mar 19, 2005 ~ 3:00 p.m. CST; Temp: 96 F; RH: 55% No start and finish times.

13. No official wind measurement – N @ 3 – 10 mph, based on operator’s evaluation of a windsock on his strip. A windsock is very crude way to determine wind speed.

14. Operations – Smoker: No smoker. This would help verify weather.

15. Records – Nearest weather: Jonesboro – 60 mi North, Wind: 360 @ 20G25. Could be argued that it is gusty because of the G in the wind reading. (G in this case refers to the maximum gust speed during the measurement period, typically two minutes just prior to the top of the hour.) Sixty miles away may not be a factor, but it is closest official weather record so it come into play. On-site weather is much more reflective of potential.

16. Record/follow-up – No photos taken. Operator believes there is simply no way liability could be shown because of the distance from the application site. One never knows what will develop, so it is best to get all the records possible when a potential exists.

17. Management decision – Insurance company was not notified because there was no liability in the mind of operator. It is best to notify the insurance company. This will allow them to do what ever is appropriate to help defend the claim(s).

The jury expects professionals to be professionals and utilize a reasonable standard of care when making applications.

NAAA Mock Trial at 2005 Convention

Six jurors weigh evidence and testimony of witnesses during the Mock Trial.

1. Is the operator a professional?
2. Was the operator a professional and a member of state and national associations?
3. Was the operator receiving continual training and updates pertinent to this application?
4. Were any laws/regulations violated?
5. Was the application made in a professional manner?
6. Was the correct equipment utilized?
7. Was the aircraft properly configured?
8. Was weather a factor?
9. Was there adequate buffer zone?
10. Were applicator’s records, complete enough to stand alone?
11. Did records provide enough evidence to show if there was a potential from this applicator’s job?
12. Could better records have been kept?
13. Were the records believable and precise?
14. What value, if any, were the GPS records?
15. Did GPS help determine if there was a potential increase/decrease in liability?
16. When should insurance agent have been contacted?
17. What sort of records should be kept during the whole process, once there is a potential claim?
18. Did the applicator utilize a “standard of care” that would be expected from any applicator?

Participants included:

Dennis Gardisser, University of Arkansas Division of Agriculture, Session Moderator

Darryl Marshall, Judge, Rebsamen Insurance

Geffrey Anderson, Defense Attorney, Anderson, Smyer & Riddle, LLP

Joel Smyer, Plaintiff’s Attorney, Anderson, Smyer & Riddle, LLP

Donald Goodman, Plaintiff, Goodman Flying Service, Inc., Chase, LA

Garry Wilson, Operator #1, Wilco Flying Service, Dewitt, AR

Tommy Anderson, Operator #2, Tommy’s Flying Service, Sherrill, AR

Ted Greene, Department of Agriculture Inspector, Phoenix Aviation Managers

Shaen Phillips, Insurance Adjuster, USAU

Jurors selected from the audience (All of whose names I do not know!)

Planning Committee:

Included all of the above, plus: Lewis Broussard, Lewis Flying Service, Inc., Morse, LA; Dave Witzman, USAU, Memphis, TN; Ken Degg, NAAA; and Bob Wolf, Kansas State University – Bio & Ag Engineering

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