Mpt File for Law School

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Second, there was a likelihood that the resulting harm would be great. The user's guide states – in bold print typeface – “WARNING: Improper use or application of MU-83 may cause serious injury or death." Therefore, it can be inferred that MU-83 is a dangerous chemical, and even an unknowing misuse could result in great harm.

Third, according to the MU-83’s user guide, there is no way to eliminate the risk of harm because pesticide drift occurs in every application. Further, the guide states that the amount of the drift is subject to both controllable and uncontrollable factors. Therefore, even with reasonable care, let alone reckless application – the risk of harm cannot be entirely eliminated.

Here, Kendall followed instruction and applied the pesticide properly, but the damage still occurred. The Franklin Supreme Court has said that this third factor carries more weight than the other factors, but it is nonetheless not determinative alone. Sisson v. Bermerton. In conducting the inquiry, a court will look to the availability and relative costs, economic and otherwise, of alternative methods for conducting the activity. Sisson v. Bermerton. Here, there existed two alternative methods in application: (1) by hand, and (2) by tractor. While these alternatives would generally cost more, Mistover could have made a more economically feasible decision in which crops to carry that did not require the use of pesticide, or increase the price of the crops citing environmental concerns.

Factors (4), (5), and (6) can go in any direction and will depend on factual finding in Sutton Township that are not available at this time.

The fourth factor looks at the extent to which the activity is not a matter of common usage. Aerial crop dusting is common throughout the country, so one could assume it is common in Sutton Township. Because Sutton Township has notification procedure in place is a large indicator that it is a widely-accepted practice. However, the facts indicate that many of the surrounding farms are organic, which would indicate a general lack of acceptance of aerial crop dusting.

The fifth factor, the inappropriateness of the activity to the place where it is carried on, could also be argued for both sides. The appropriateness of the Mistover will depend on the current acceptability in Sutton Township as stated in factor four.

The sixth factor, the extent to which the activity's value in the community is outweighed by its dangerous attributes, will depend on how a judge would weigh Mistover's contributions to the community against the danger its activities pose to others. The Franklin Court of Appeals explained that the value of an activity to the community may negate factors that would otherwise favor imposing strict liability. Fredericks v. Centralia. Sutton Township experienced economic difficulties in the 90’s, and businesses like Mistover played a critical role in Sutton’s difficult economic times to kick start the economy. While Mistover's activities would be viewed as a true benefit to Sutton Township; the trout farm will make the same argument.

Because three factors appear to be in favor of finding ultra-hazardous liability and three factors could be argued either way, but more importantly, can be argued legitmatley against Mistover, it is likely that a court would find Mistover's aerial crop dusting to constitute an ultra-hazardous liability. The court would then find Defendants strictly liable for damages that resulted from the ultra-hazardous activity.

Finally, and even though aerial crop dusting is legal in Sutton Township; this will not be a good defense against ultra-hazardous liability. Thurman v. Ellis.