Who’s responsible?

by Sally Colby
Although many farmers are still scrambling to get into rain-soaked fields, manure application following harvest is an important part of the crop schedule for the year.
Attorney Robert Moore, of Wright & Moore Law Co. in Delaware, Ohio, addresses the liability and rules of the road for manure hauling.
Legal liability surrounding manure application can become complicated because it often involves more than one party. A farmer might keep livestock on his own land or on rented land, and either haul manure himself, assign the task to an employee or use a custom applicator. In any case, Moore suggests a strong contract to protect all parties involved, from landowners and tenants to employees and manure haulers.
According to Moore, two types of laws apply to liability: statutes, which are codified laws passed by state legislatures; and regulations, which are enacted by states or federal agencies. One way to be liable for manure transport or application is to be in violation of one of these laws. “It’s really important to know which laws apply in your state and make sure you conform to them,” he said. “Ignorance is no excuse under the law.”
State-enacted manure regulations that dictate how farmers can handle manure are based on factors such as water pollution, pollutant discharge and the Clean Water Act. “The two main sources are laws/regulations or negligence,” said Moore. “Negligence means you did something a reasonable person would not do and that it caused harm to someone else.”
When there’s potential that multiple parties are involved (landowner, tenant, custom applicator, employees), the goal is to allocate liability between the parties. Moore explained that this helps prevent finger-pointing and encourages everyone working with manure application to have a written contract with the other party that outlines payment terms, who has control over the manure, and when. “If something goes wrong, we identify where it happened,” he said. “We can look into the contract and identify who had control at that point, which would then make that party the likely party to be negligent.”
Moore outlined some of the most common terms and conditions included in written contracts for manure transport and application. Phrases such as “the applicator shall be liable for all regulatory violations,” “the applicator shall apply manure in compliance with the manure management plan,” “the operator shall not be liable after purchaser takes possession of manure” and “the operator shall not be liable after delivery of manure, and the applicator agrees to indemnify landowner and hold harmless from any and all criminal or civil penalties or civil complaints” are among the most common in contracts. Moore added that these allocations are basic, and vary from state to state.
“The main thing is to have a contract,” said Moore. “Any contract is better than no contract. The more terms you can get, the better.” Moore said some form of an indemnity statement is the most important item to include in a contract. “If you caused the incident, you will pay all damages and legal fees for the other party. Indemnity protects both parties – it says ‘if you’re not the one who caused the liability, you don’t have to pay for it – the other party does.’”
The written contract should clarify who’s doing what, and who is or is not an employee. The contract should also clarify when liability shifts from one party to another. “That’s really important,” said Moore. “Once it’s loaded onto the truck or tanker, it becomes the hauler’s responsibility. Once it gets to the farm and on the land, it becomes the applicator’s liability. Everyone should be clear about who is responsible for what, and what their potential liability is.”
Other considerations for manure contracts include permit regulations, manure management plans, best management practices (BMPs), definition and use of “generally accepted agricultural practices” and risk factors that could result in spills, discharges or misapplications. “I like to include a map of the property so it’s absolutely clear where the property is to make sure the applicator gets to the right property,” said Moore. “I want waterways marked, tile outlets marked and any unique characteristics of that land that may affect that application clearly marked. It becomes part of the contract so if an application issue occurs, we can go back and say ‘Did the applicator know about it, forget about it or ignore it?’ Or did the applicator have no way to know about it because the landowner didn’t tell him about it? That’s very valuable in resolving issues.”
High risk factors can complicate manure hauling and solidify the need for a good contract. Moore said soil needs, location of tile/tile plugging, setbacks, waterway locations, areas prone to flooding, the condition of the manure, field conditions and weather conditions should all be addressed in a contract. “If you can’t contract them away,” he said, “at least know these are issues that could affect your liability.”
Other important contract terms that potentially affect liability include land identification, or where manure will be applied, and assignability – can the manure applicator assign the contract to another applicator? Moore explained that in most states, if you are in a contract with somebody, unless the contract specifically says otherwise, you can assign that contract to someone else. “If you hire an applicator, unless the agreement says it can’t be assigned, that applicator can give the contract to a different applicator and now you’re in contract, as a landowner, with a different contractor.”
Moore said another contract goal is to take assignability out of the contract. The contract should include verbiage that says “This contract cannot be assigned without express written permission.” “If you hire somebody to apply manure, or if you’re the applicator and get into a contract with the producer or landowner, you want to work directly with that person,” he said. “You don’t want that person to hand off your contract to someone else.”
If there is no written contract, liability allocation can be difficult. “This is where there’s finger-pointing and everyone hires attorneys,” said Moore. “This is where legal expenses quickly increase. There’s a chance you could be found liable even if you don’t think it’s your fault. You never know what a judge or jury would do. There’s no reason to not have a written contract that at least allocates liability fairly.”
Liability management tools also include good records and insurance with pollution exclusions and riders. “Many general farm liability policies do not automatically include environmental coverage,” said Moore, who advises his farm clients to make sure their policies include environmental liability. “If it doesn’t, it should be added. It will cost a little more, but I think it’s well worth it.”
Moore emphasized the point that employees who handle manure at any point, from pumping to field application, should be well trained for their job, including safety measures such as proper lighting and signage on equipment that will be on the roads. “There’s no easier way to be liable on the road than if you don’t have an SMV and the lights aren’t working,” he said. “Make sure lights are working – that’s an easy way to be found negligent.”

2018-10-29T15:36:32+00:00October 29th, 2018|Eastern Edition|0 Comments

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