PIERRE, S.D. – The South Dakota Supreme Court reinstated a McCook County farmer’s lawsuit against his neighbor Thursday, reversing a lower court decision that dismissed his case.
Kevin Jucht sued Nathan Schulz alleging damages to his soybean crops after Schulz sprayed his crops with a chemical spray on adjacent land. Prior to spraying the crops, Schulz called Jucht to inquire what type of crops Jucht had planted. At the time of the call on June 24, 2022, it was 11:02 a.m., the temperature was 92 degrees and winds were 15 mph.
Schulz concluded spraying at about 6 p.m. At that point, the temperature was 98 degrees and winds were at 25 mph. Jucht alleged that Schulz’s spray drifted onto his soybeans, causing severer damages to his soybeans that resulted in diminished yields.
Jucht called the South Dakota Department of Agriculture and Natural Resources to report the damage. He was advised by DANR not to involve himself in the subsequent investigation. Schulz, meanwhile, did not try to inspect the damages, which he was entitled to do under state law, nor did Jucht ever bar Schulz from entering the property.
Jucht sued, making claims of negligence, trespass, punitive damages and damages to trees and plants. Schulz moved to dismiss the lawsuit, arguing that Jucht had not served proper notice of crop damage required under South Dakota.
State law requires a person making an allegation of damaged crops to provide the chemical applicator with notice by certified mail within 30 days of discovery of the damage. The law also allows the applicator and up to four representatives to inspect crops that were alleged to have been damaged.
Judge Chris Giles agreed with Schulz that proper notice had not been given and dismissed Jucht’s case.
But the Supreme Court decided that Giles had made an “incorrect” construction of the notification requirement, noting that the law existed in order to provide an applicator the opportunity to inspect allegations of damaged crops. Jucht had argued that Schulz received notice of the damages from the DANR investigation and had not been barred from inspecting the soybeans.
“When SDCL 38-21-46 and 47 are read in conjunction, it is apparent that the Legislature intended to preserve the pesticide applicator’s right to inspect the alleged damage shortly after the damage is observed and to bar a claimant from asserting a claim if that claimant thwarts the applicator’s right to inspect the damage in a timely fashion,” wrote Justice Scott Myren.
“For purposes of ruling on the motion to dismiss, the circuit court was obliged to accept as true the allegations in Jucht’s complaint,” Myren added. “Taken as true, those averments were sufficient to survive the motion to dismiss. Further proceedings will establish the nature and timing of the notice Schulz received regarding the alleged damage and whether he was afforded the opportunity to exercise his statutory right under SDCL 38-21-47 to inspect the alleged damage.”
The decision was 5-0.
Matthew McIntosh of Beardsley, Jensen & Lee in Rapid City represented Jucht. Schulz was represented by Elizabeth Hertz and Mitchell Peterson of Davenport, Evans, Hurwitz & Smith in Sioux Falls.
