Posted By Ron Kramer on February 10, 2010

I read today how Bugman Pest and Lawn, in the aftermath of the Layton, Utah deaths of 4-year old Rebecca Toone and year old Rachel Toone, claim that they and their employees broke no law in applying poisonous gas to kill rodents outside their house. The president of the company, Raymond Wilson, told KSL News that his technician followed correct procedure in applying the Fumitoxin product, which is the brand name for phosphine gas: “He put the pellets in the ground, plugged the holes with newspaper, and then put dirt over the holes to keep the gas in the ground.” Wilson also affirmatively insists that the process was done according to protocol and according to EPA standards and that any manuals that specify how the product is to be used, is “not the law.”

Despite Wilson’s insistence that protocols and standards were followed, however, he was at a loss to say explain where the toxic tablets were placed. He was also at a loss to explain exactly how much of the chemical poison was used since his employee had failed to properly document how much he had applied. (Investigators did say they recovered over 1 ½ pounds of the substance, or around 800 tablets.)

One thing that is clear, however, from the preliminary investigation that has been done, is that the poison was applied too close to the home. The manufacturer’s manual for Fumitoxin states that it should not be applied any closer than 15 feet to a residence. Pestcon Systems Inc. is the company that manufactures the Fumitoxin aluminum phosphide tables. In the manual for Fumitoxin, on page 6, on the Pestcon Systems web site, it says in all caps: “This product must not be applied into a burrow system that is within 15 feet of a building that is, or may be occupied by humans, and/or animals, especially residences.”

Testing shows, though, that the toxin was applied 3 feet from a garage door and 7 feet from the front door.

This is a sad and tragic case, made worse because the owner of the company now appears to be avoiding responsibility for the consequences of his employee’s and his own actions. While there is some talk about the district attorney getting involved to screen this case for criminal charges, whether or not this happens, should not affect the civil claim that the Toone family may have against Bugman Pest and Lawn and/or the manufacturer of the chemical poison Fumitoxin.

One thing that Mr. Wilson doesn’t seem to get is that in the civil context, manufacturer specifications of how the chemical poison is to be applied, is really the law of the case and the standard that should have been followed by his pest control company in applying the pesticide. Deviance from the manufacturer’s instructions on how to apply this dangerous poison is basically failure to follow the applicable standard of care, and in a legal context, is considered evidence of negligence.

Bugman Pest and Lawn, in my estimation, is dead meat in any civil claim that the Toone family may wish to bring against them. First, the company chose to engage in what is arguably an “ultra-hazardous” activity. In the law, those that engage in activities said to be extremely hazardous in nature, such as those involving explosives or other devices where life and limb can be foreseeably lost or compromised, are held to a higher standard because of the heightened risk that negligence in conducting these activities can impose on the public. If a court finds that the company engaged in this type of activity, then strict liability will apply. See CNG Producing Co. v. Columbia Gulf Transmission Corp., 709 f.2d 959 (5th Cir. 1983) (storage of dangerous, highly poisonous gas was an activity which, even when conducted with the greatest of care and prudence, could cause damages to others and was seen as an ultra-hazardous activity).

Even if strict liability didn’t apply, however, certainly it would be no problem to show gross negligence. In this case, and from the news reports, it seems evident that the technician that applied the product deviated from manufacturer specifications by applying the product too close to the family home and perhaps also in using a larger amount of poison than what the manufacturer specified. Further, it also seems clear that the company failed to adequately train its employees to follow the manufacturer instructions and/or industry trade practices or standards when it came to using this toxin and to properly document how the product was applied. (It is also up for debate as to whether the company violated industry standards in using this chemical poison for this application in the first place.) Additionally, because of the extreme nature of the threat to human life by the misapplication of this substance, and the fact that two young lives were needlessly lost, punitive damages against the company, I think, may also be a foregone conclusion. What is left for discussion, then, is the responsibility that Pestcon Systems might have in all of this.

The opinions expressed above are those of the author, Ron Kramer, a Utah attorney practicing personal injury, auto accident and chemical poisoning law.

The Kramer Law Group does not currently represent any of the parties referenced in the blog article above. We have cited and linked to the source of our information. If you were involved in the above incident, or one like it, and have questions about your rights and possible remedies, you may call a reputable Utah personal injury law firm. The information and opinions expressed above are provided as a public service and should not be used in place of legal advice from a qualified Utah personal injury lawyer.

Categories: Utah Chemical Poisoning
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