                                 NO. 07-08-0347-CV
                            IN THE COURT OF APPEALS
                      FOR THE SEVENTH DISTRICT OF TEXAS
                                   AT AMARILLO
                                     PANEL B
                               FEBRUARY 17, 2010
                         ______________________________


                       JAMES RILEY DAVIS, a/k/a J.R. DAVIS,
                                                          Appellant
                                         v.


                                 RONALD JORDAN,
                                                          Appellee
                        _______________________________
               FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;
                  NO. 17194; HON. KELLY G. MOORE, PRESIDING
                         ______________________________
                                     Opinion
                         ______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      The cause before us involves allegations of over-spraying a herbicide onto a

neighboring farmer’s watermelon crop. James Riley Davis (Davis) alleged that Ronald

Jordan (Jordan) did just that when he used his tractor to apply the herbicide to his

cotton crop.    Davis’ property adjoined that of Jordan, and the contamination was

allegedly caused by Jordan spraying the chemical during windy conditions. The jury

denied Davis’ claims of negligence; so, he appealed. The issues we are asked to
resolve implicate the trial court’s jury instructions (or lack thereof), evidentiary rulings,

and the sufficiency of the evidence. We affirm.


         Issue One - Negligence Per Se


         Davis initially asserts that the trial court erred in refusing to instruct the jury on

negligence per se.       He was allegedly entitled to the instruction because Jordan’s

conduct violated §7.71 of Title 4 of the Texas Administrative Code.           We overrule the

issue.


         Section 7.71 of Title 4 states that “[i]t shall be a violation for any person to use or

cause to be used a pesticide in a manner inconsistent with its label or labeling.” 4 T.A.C.

§7.71 (2009). As can be seen, §7.71 applies to pesticides; however, for purposes of

this case we assume arguendo that the herbicide used by Jordan fell within the ambit of

a pesticide. Furthermore, the mandatory nature of the regulation allegedly rendered its

violation an instance of negligence per se.


         Negligence per se is a tort concept through which the courts adopt a legislatively

imposed standard of conduct as defining the conduct of a reasonably prudent man.

Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979); Borden,

Inc. v. Price, 939 S.W.2d 247, 250 (Tex. App.–Amarillo 1979, writ denied). Implicit

within it is the idea that by declaring what the public must do or refrain from doing, the

legislature has effectively characterized the commission of the act as conduct which a


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reasonably prudent person would not do.1 Borden, Inc. v. Price, 939 S.W.2d at 250;

see 3 F. Harper, F. James & O. Gray, The Law of Torts § 17.6 at 621 (1986). In other

words, a particular act must be involved which the legislature prohibited, and in

prohibiting the act, it can be said to have fixed a standard of reasonable care. Missouri

Pacific R.R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex. 1977).                        By so

prohibiting it, the legislature obviated the need to ask a jury to pass upon the actor's

prudence. Borden, Inc. v. Price, 939 S.W.2d at 250. Instead, the trial court merely has

the factfinder decide if the tortfeasor committed the act proscribed by the statute and if

the act proximately caused injury. Moughon v. Wolf, 576 S.W.2d 603, 604, nn.2-3 (Tex.

1978); Air Prods. & Chems. v. Odfjell Seachem A/S, No. 01-08-0591-CV, 2009 Tex.

App. LEXIS 6853 (Tex. App.–Houston [1st Dist.] August 27, 2009, no pet.); Borden, Inc. v

Price, 939 S.W.2d at 250. So, if violation of the duty imposed by a statute is dependent

upon a jury determining if the act was unreasonable or imprudent, then the statute

cannot be one giving rise to negligence per se. Borden, Inc. v. Price, 939 S.W.2d at

250; Cudworth v. South Texas Paisano Const. Co., 705 S.W.2d 315, 317 (Tex. Civ.

App.–San Antonio 1986, writ ref'd n.r.e.).




       1
         Though we refer to legislative enactments as its basis, negligence per se may also be founded
upon an administrative regulation. Continental Oil Co. v. Simpson, 604 S.W.2d 530, 534 (Tex. Civ. App.–
Amarillo 1980, writ ref’d n.r.e.).

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       In the foregoing guidelines we stumble upon the obstacle preventing us from

accepting Davis’ contention. The obstacle involves the entity imposing the particular

restriction that Jordan allegedly breached. The record does not indicate that it was

either the Texas Legislature or the Agriculture Commission. Rather, it seems it was the

private entity manufacturing or distributing the herbicide in question. That is, Jordan

was sued for purportedly spraying a herbicide via an improper manner or under

improper conditions which allowed it to drift onto Davis’ watermelon crop. Yet, §7.71 of

the Administrative Code did and does not itself address or explain the manner or means

of applying the product. Instead, it merely made it a “violation” to use a pesticide in a

“manner inconsistent with its label or labeling.” And, though a use inconsistent with the

labeling encompasses “applications at sites, rates, concentrations, intervals or under

conditions not specified in the labeled directions,” id., the latter itself does not specify

any particular rate, site, concentration, interval or condition.       Those tasks were

apparently left to the discretion of the manufacturer or distributor of the product, i.e.

Cheminova A/S of Denmark or Cheminova, Inc. of New Jersey. That is problematic for

if we were to conclude that deviating from the label’s directions and restrictions

constituted negligence per se we would be effectively authorizing a private (and in this

case foreign) corporation to create Texas governmental policy regarding the pertinent

standard of care.

       Again, negligence per se contemplates that the legislature, or possibly an

administrative agency, specify the conduct which is to be prohibited. Missouri Pacific

                                             4
R.R. Co. v. American Statesman, supra. In so prohibiting the act, it can then be said

that the legislature, or possibly an administrative agency, has exercised its judgment in

fixing a pertinent, statewide standard of reasonable care regulating its citizenry. Id.

But, that is not the case here, or at least Davis has not shown otherwise. Adopting

appellant’s argument is tantamount to acquiescing in the delegation of that

governmental authority to Cheminova since it apparently was free to specify the

contents of its label.

       The wording adopted by Cheminova in its label is also of concern. As described

in Borden, if the verbiage is conditional or otherwise fails to impose an absolute

restriction, the prohibition cannot be the fodder of negligence per se. Borden, Inc. v.

Price, 939 S.W.2d at 250-51(holding that because the traffic regulation allowed the act if

it could be done safely, the prohibition was conditional and not the basis for negligence

per se). Here, Cheminova wrote “avoid” in its label. Assuming that “avoid” connotes an

absolute prohibition, we have no idea of whether the company selected the word with

the intent to impose a statewide standard of care. More importantly, if the selection of

a label’s wording lies within the discretion of the chemical’s distributor or manufacturer

(again, something that Davis did not address) it may well be that some other

manufacturer of an identical product could utilize different wording that has the same

connotation but that is less than absolute. For instance, company X may choose to say

something like “do not spray in windy conditions unless it can be done safely to avoid

damage to neighboring plants.” That verbiage is more akin to the language involved in

                                            5
Borden and, consequently, unlikely to create an absolute, uniform standard of care.

But, both it and the wording on Cheminova’s label say basically the same thing, “you

shouldn’t spray it on plants that you don’t want to kill.” So, depending upon whether you

bought the weed killer from Cheminova or from company X, the user’s potential liability

could be assessed under different legal standards. The risk of such potential variance

is unacceptable.

       Simply put, the circumstances at bar (as they appear in this particular record) do

not fit within the legal framework of negligence per se. Thus, we cannot say that the

trial court abused its discretion in refusing to instruct the jury on the topic. See Shupe v.

Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (holding that a trial court does not err

when refusing to submit particular jury instructions unless it abuses its discretion).

       Issue Two – Exclusion of Administrative Order, Findings and Notice

       Next, Davis contends that the trial court erred in excluding from evidence a notice

of violation, findings, and an order issued by the Texas Agriculture Commission. The

data allegedly was relevant and within an exception to the hearsay rule. We overrule

the issue.

       That the evidence was subject to exclusion under Texas Rule of Evidence 403

was one of three grounds proffered by Jordan to prevent its admission. Furthermore,

the trial court did not state on what grounds it relied in ruling as it did. This is of import

because Davis says nothing of Rule 403 and why its potential application was


                                              6
unwarranted.2 Thus, he did not carry his appellate burden of showing that the trial court

erred.

         Additionally, a closure letter states that the Commission’s investigation

“indicate[d] that a violation of Texas pesticide laws may have caused or contributed to

the effects which” Davis experienced. (Emphasis added). Yet, the pertinent evidentiary

or legal standard applied by the investigators to arrive at this conclusion or opine about

the nexus between the violation and results went unmentioned. Whether that standard

was comparable to the one applicable in a civil case like that at bar (i.e. preponderance

of the evidence) also went unmentioned. Indeed, by their using the word “may” one

could reasonably argue that the investigators were not applying the “but for” test used to

assess causation in negligence cases. Thus, it would have been within a reasonable

jurist’s discretion to exclude the notice due to its potential to confuse the jurors about

whether a legitimate nexus existed between the misconduct and any ensuing damage

purportedly suffered by Davis.




         2
         We note that despite the lack of reference to Rule 403, Davis did argue in his brief that in
excluding the evidence “the jury was left with a false impression” because an investigator with the
Agriculture Commission “was allowed to testify that her investigation showed Jordan to ‘be in
compliance.’” Whether this was an attempt to address that aspect of Rule 403 concerning evidence that
may confuse or mislead the jury is unknown. Nonetheless, we find the contention misplaced. When the
investigator alluded to Jordan being in compliance, she was referring to an inspection of his records, not
the allegation of improperly spraying Davis’ crop. So, to the extent that the order, findings and notice
involved the spraying of the crop, we fail to see how their admission was necessary to ameliorate any risk
of confusion arising from the investigator’s statement.
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       Finally, we note that per the findings alluded to by Davis and found in the

Commission’s order, the latter arose from a settlement between Jordan and the

Commission. Because evidence of settlement agreements is inadmissible under Texas

Rule of Evidence 408, it was well within the trial court’s discretion to exclude the data.

       Issue Three – Instruction on Act of God

       Davis next contends that the trial court erred in submitting to the jury an

instruction on act of God. He believed this so because there was no evidence that the

act of God in question (i.e. 50 mph winds, the lack of humidity, and sandblasting caused

by high winds) was the sole cause of the crop’s demise. We overrule the issue. Davis’

contention is belied by testimony that the watermelon plants were dried and dying

before the Roundup could have affected them and that they had recently experienced

“severe wind and sand damage” due to a “severe wind and sand storm.” So too was

there testimony not only that the nominal amount of Roundup found on the plants tested

was insufficient to kill them but also that the wind direction at the time of application

could not have led to the drift in question. See McWilliams v. Masterson, 112 S.W.3d

314, 320 (Tex. App.–Amarillo 2003, pet. denied) (stating that one is not responsible for

an act of God and such consists of an event occasioned exclusively by the violence of

nature). This is some evidence supporting the trial court’s decision to submit the

instruction. Thus, it did not abuse its discretion in doing so. See Castro v. U.S. Natural

Resources, Inc., 880 S.W.2d 62, 64 (Tex. App.–San Antonio 1994, pet. denied) (stating



                                             8
that a trial court is obligated to submit a defensive instruction if some evidence from any

source supports its submission).

       Issue Four – Admission of Expert Testimony

       Next, Davis argues that the trial court erred in admitting the expert testimony of

Dr. Kreig. The latter, allegedly, was not qualified to talk about watermelons, and the

experiment or test he described undertaking purportedly was unreliable. We overrule

the issue.

       Regarding Davis’ complaint about the admissibility of Kreig’s experiment, we

conclude that the issue was not preserved.       This is so because he presented this

particular complaint via a motion in limine. Yet, it has long been held that one does not

preserve evidentiary objections via a motion in limine. Kaufman v. Commission for

Lawyer Discipline, 197 S.W.3d 867, 873 (Tex. App.–Corpus Christi 2006, pet. denied).

Furthermore, when Kreig’s reports (i.e. the original and its supplement describing the

experiment and findings arising therefrom) were tendered to the trial court, Davis

apparently stipulated to their admission. That is, he replied, “agreed and stipulated.”

After being told this, the trial court observed that the “reports are admitted without

objection . . . .” (Emphasis added). Given these circumstances, we conclude that any

complaint regarding the reliability of the experiment and its findings was not preserved,

and Davis neither argues otherwise nor proposes any exception to the rule requiring

preservation of error.



                                            9
       As for the objection regarding Krieg’s qualifications, we assume arguendo that

the matter was preserved and well-founded. Nonetheless, his report was admitted into

evidence without objection. Thus, the jury was free to consider it irrespective of whether

its author was a qualified expert, and because of that we cannot but find the proposed

error to be harmless. In other words, it is rather incongruent to say that the jury should

not have been able to hear Kreig’s oral comments about his experiment and findings,

but it was free to read them via his report. In either situation, they were before the jury.

       Issue Five – Sufficiency of the Evidence

       Finally, Davis attacks the factual sufficiency of the evidence.           That is, he

contends that the jury’s verdict rejecting his negligence claim was “against the great

weight and preponderance of the evidence.”          We overrule the issue for it was not

preserved. Davis omitted it from a motion for new trial contrary to Texas Rule of Civil

Procedure 324(b)(2). In re M.S.,115 S.W.3d 534, 547 (Tex. 2003). Nor did he argue or

otherwise illustrate through his reply brief that the complaint was preserved.

       Jordan proposed a cross-issue for our consideration. However, its consideration

was contingent on our sustaining one or more of Davis’ issues. Because we overruled

each of them, we need not consider the cross-issue. Accordingly, the judgment of the

trial court is affirmed.



                                                  Brian Quinn
                                                  Chief Justice


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