## Facts

- Pickens Brown, owner and sole operator of The Kill Company, performed contract extermination services at U.S. Steel’s Gary Works in Gary, Indiana.
- After employee complaints of insect bites in a file room in the Accounts Payable Building, U.S. Steel asked Brown to apply pesticides there.
- On April 20, 1983, Brown fogged the file room with Pyrtox in a kerosene base between about 6:00 and 6:30 a.m.
- Before fogging, Brown sealed the room’s entrances, including taping plastic bags over an open doorway without a door.
- Product instructions required vacating the treated area and ventilating it before re-occupancy; Brown left after application and assumed a U.S. Steel employee would ensure ventilation.
- The building’s air-circulation system recirculated indoor air rather than exhausting it outside.
- Employees arrived after 7:00 a.m.; within about an hour of the application, numerous employees developed symptoms consistent with pesticide exposure.
- Thirty-three employees, including plaintiffs Cherrye Bradley, Frances Roy, and MaryAnn Welch, were treated at the plant dispensary and received testing, including serum cholinesterase tests.
- Plaintiffs reported acute symptoms including nausea, headaches, and respiratory irritation, and sought damages for physical injury, pain and suffering, and emotional distress.

## Issues

1. Whether a professional pesticide applicator breached the duty of reasonable care by fogging and sealing an occupied workplace area without ensuring ventilation and without warning or protecting employees expected to return.
2. Whether the pesticide application and lack of ventilation proximately caused plaintiffs’ symptoms and compensable injuries.
3. What damages, if any, were proven to result from the exposure, including whether claimed ongoing effects were attributable to the incident.

## Decision

- The court found Brown and The Kill Company negligent in the manner of application and in failing to ensure adequate ventilation and worker protection.
- The court found the negligence was a proximate cause of plaintiffs’ injuries from pesticide exposure.
- Judgment was entered for the plaintiffs against Brown and The Kill Company, jointly and severally, with compensatory damages awarded in specified amounts.

## Legal Principles

- Under Indiana negligence law, plaintiffs must prove duty, breach, proximate causation, and damages.
- A professional pesticide applicator must act as a reasonably prudent applicator under similar circumstances, including taking reasonable steps consistent with label directions to prevent foreseeable exposure.
- An applicator may be liable for failing to implement or confirm safety-critical measures (such as ventilation) and for failing to warn or protect foreseeable occupants after application.
- Proximate causation in toxic-exposure claims may be established through circumstantial evidence, including temporal proximity, the number of affected individuals, and medical testing consistent with exposure.

## Conclusion

After a bench trial, the court held that the exterminator negligently fogged and sealed a workplace area and failed to ensure required ventilation or provide adequate protections, and that this conduct caused plaintiffs’ pesticide-exposure injuries warranting compensatory damages imposed jointly and severally on the contractor and its operator.


Bradley v. Brown, 852 F. Supp. 690 (N.D. Ind. 1994)