Bunyak v. Clyde J. Yancey & Sons Dairy, Inc.

438 So. 2d 891
CourtDistrict Court of Appeal of Florida
DecidedSeptember 16, 1983
Docket82-2098
StatusPublished
Cited by16 cases

This text of 438 So. 2d 891 (Bunyak v. Clyde J. Yancey & Sons Dairy, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bunyak v. Clyde J. Yancey & Sons Dairy, Inc., 438 So. 2d 891 (Fla. Ct. App. 1983).

Opinion

438 So.2d 891 (1983)

George BUNYAK and Lillian A. Bunyak, His Wife, Appellants,
v.
CLYDE J. YANCEY AND SONS DAIRY, INC., and the Insurance Company of North America, Appellees.

No. 82-2098.

District Court of Appeal of Florida, Second District.

September 16, 1983.
Rehearing Denied October 18, 1983.

*892 John M. Strickland of Livingston, Patterson & Strickland, P.A., Sarasota, for appellants.

Daniel A. Carlton of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellee, Clyde J. Yancey and Sons Dairy, Inc.

No appearance for appellee, The Ins. Co. of North America.

CAMPBELL, Judge.

In 1963, George and Lillian Bunyak, the appellants in this case, purchased 100 acres of land in a rural area of Manatee County. They raise cattle and grow hay on this property.

West of appellants' property lies property belonging to Clyde J. Yancey & Sons Dairy, the appellee in this case. Appellee owns approximately 1000 acres and since 1956 has operated a dairy farm on this property.

Central to appellee's dairy operation is a milking barn that stands about one-half mile from appellants' fence line and to the west of a thoroughfare called the Betts Road. Because this property is somewhat higher than the property east of Betts Road, water in this area drains or runs naturally from west to southeast. East of the Betts Road, a natural drainage channel unites with a manmade ditch to form a V. Appellants claim that appellee dug the ditch and altered the natural drainage in the area, while appellee maintains that it only cleaned and cleared an existing ditch. In any event, at the point of the V, a single ditch continues running downhill and into a series of ponds situated towards the rear of appellants' property.

In 1970, manure generated from the dairy farm flowed down onto appellants' property and clogged their ditches. Shortly after this, appellee constructed a large lagoon[1] near the milking barn to hold the liquified manure that ran from the barn at an estimated flow of 14,000 pounds per day. Appellee also built a second lagoon[2] directly behind the first one to store overflow, and because this second lagoon is situated on higher ground, appellee uses an electric pump to push the excess effluent up into it.

One day in November, 1978, George Bunyak and his son decided to go fishing in a pond on their property. Once there, they found the pond covered with a substance which they believed to be manure. They followed the creek upstream, finding it and another pond similarly clogged and filled. They crossed over to appellee's property and followed the flow until they reached the Betts Road at a point where a culvert runs underneath that road. From this vantage point, the Bunyaks saw the substance flowing through the culvert from appellee's anerobic lagoon.

A few days later, appellants' daughter rode one of her horses out near the ponds on her parents' property. She also saw that the ponds were covered with a substance that she also believed to be manure; she said the smell was awful and she feared that her horse would be harmed if it waded into the pond. Following the flow, as her father and brother had done, she soon reached the Betts Road and also saw the substance flowing down from appellee's barn area through the culvert and eventually onto her parents' property.

George Bunyak complained to Clyde Yancey, Jr., who admitted that the pump was *893 broken. After unsuccessfully trying to get appellee to remedy this problem, appellants filed suit seeking compensatory and punitive damages under counts of negligence, strict liability, trespass, and nuisance.

During the trial, there was a dispute over whether the substance flowing onto appellants' property was, in fact, liquified cow manure. Appellee's expert, hydrologist Lloyd Horvath, testified that he had taken two core samples removed from different areas of appellants' property to a geologist at his firm and had asked the geologist to examine these samples and determine which sample came from a manure contaminated pond. Counsel for appellants objected to Horvath expressing the expert opinion of another expert, but the trial court overruled this objection.

During the trial, the court directed verdicts on the nuisance, trespass, and strict liability counts. The jury considered only the negligence count and returned a verdict for appellee. Appellants then filed this appeal, and we now reverse.

Appellants have raised four points on this appeal. They contend that the trial court erred in directing a verdict on the trespass count, that appellee should be liable without fault for the damage to appellants' property, that Mr. Horvath's testimony about the geologist's opinion was inadmissible hearsay, and that the jury ignored the evidence. We need only consider the second and third points raised.

However, before addressing these issues in detail, we note initially that appellee has argued that there was only circumstantial evidence that the anerobic lagoon ever overflowed, the theory apparently being that there was never any evidence that anyone actually ventured to the edge of appellee's anerobic lagoon and saw the manure flowing out. Such direct evidence is not indispensable for it is beyond peradventure that circumstantial evidence is also quite sufficient to prove a case. Neilsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960). See also Sullivan v. State, 430 So.2d 519 (Fla. 2d DCA 1983). The testimony and documentary evidence presented by appellants during their case-in-chief was more than sufficient and from it the jury could have concluded that manure did flow from the lagoon onto appellants' property.

Moving to a consideration of the issues dispositive of this appeal, we find that the trial court erred in permitting the hydrologist to testify regarding an expert opinion given by the geologist. Section 90.704, Florida Statutes (1981), states:

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, him at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

This does not permit an expert witness in one field to testify as to the expert opinion given to him by another expert. Such testimony is inadmissible hearsay pursuant to section 90.801(2)(c), Florida Statutes (1981). Everett v. State, 97 So.2d 241 (Fla. 1957), cert. denied, 355 U.S. 941, 78 S.Ct. 432, 2 L.Ed.2d 422 (1958); and State v. Towne, 142 Vt. 241, 453 A.2d 1133 (1982).

The trial court also erred in removing the strict liability count from the jury's consideration. In the oft-cited case of Rylands v. Fletcher, 1868, L.R.3H.L. 330, England adopted the doctrine of strict liability for the hazardous or abnormally dangerous use of one's land. This doctrine is limited to those land uses deemed nonnatural. Subsequently, the doctrine has been adopted in the United States by a majority of jurisdictions. Prosser, Laws of Torts § 78 (1971). American courts, like the English courts, have applied the doctrine to abnormally dangerous conditions or activities not natural to the locality in which they occur.

Our supreme court obliquely applied the Rylands v. Fletcher doctrine as early as 1889 in Pensacola Gas Co. v. Pebley, 25 Fla. 381, 5 So. 593 (1889).

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438 So. 2d 891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bunyak-v-clyde-j-yancey-sons-dairy-inc-fladistctapp-1983.