MEMORANDUM

Query/Restatement of the Facts/Issue:

This is an acknowledged receipt of your memorandum pertaining to our clients request

to review on:
1. Whether or not Petra Flynn , in her individual capacity & a member of Mistover
Acres LLC, can be held personally liable for the damages done towards the
trout farm operated by Genesee Trout Inc. when it caused the aerial crops
dusting of a pesticide, MU-83, on Mistover fields. Mistover Acres LLC is a
Franklin LLC.
2. Whether or not the aerial crop dusting of a pesticide, MU-83, on Mistover fields
constitute an ultra hazardous activity

Discussion:

From the facts given, it can be deduced that by reason of her being a member of
Mistover Acres limited liability company Petra Flynn will not be liable for the acts done
by being a member of the said LLC. Even so, Petra Flynn may still be personally liable
her tortuous act of her participation in the aerial crop-dusting activity.
The court in the case of Hodas vs Ice LLC, 2204 defines a Limited Liability
company(LLC) as ” a business entity that combines the attributes of a
partnership for federal income tax with the limited liability protection that a
corporation provides to shareholders. The provisions pertaining to the liability of
LLC members are found in Franklin Limited Liability Company Act (FLLCA).
The FLLCA generally provides that a member of an LLC is not personally liable
for acts or debts of the company solely by reason of being a member. However, a
member may be personally liable if the person participates in tortuous conduct. “
In the case at hand, the operating agreement entered into by Petra Flynn’s clearly
spells out her role which is the supervision and the marketing of the LLC produce. The
day to day decision on planting and harvesting was designated to another member of
the LLC.
Petra Flynn went beyond her role of supervising and marketing the LLC produce. She
took an active participation in the planting and harvesting of the LLC produce. This is
evidenced by her action when
Chip, Petra and Gilbert decided to grow new and rare lettuce varieties which required
the use of pesticides but when they discovered a significant increase on the leaf slugs
on the plants.
1. Petra and Chip decided to use aerial crop-dusting method to kill the leaf slugs.
This method was chosen to mitigate the risk of losing a significant portion of their
lettuce produce while reducing labor costs.
2. Petra herself participated in searching the best pesticide
3. After searching for the best pesticide , Petra Flynn was the one who ordered
the MU-83 through an agricultural supplier
4. Petra ensured that proper public notices were posted to open and conspicuous
spaces to adhere with the Franklin Environmental Code.
The present evidence shows that Petra Flynn took an active participation in the planting
and harvesting of the LLC produce. Thus, she may be held liable for the damages
caused in the trout farm of Genesee Trout, Inc.
In the case of Thurman v. Ellis, 2003, the Court explains that,” as a general rule,
those who engage in ultra hazardous activities are subject to strict liability for the
harm caused to the innocent as a result of the activity. When determining whether
an activity is ultra hazardous, Section 520 of the Restatement of Torts will be
applied. Sec 520 requires analysis of 6 factors:
1. existence of a high degree of risk of some harm to the person, land, or
chattels of others
2. likelihood that the resulting harm will be great
3. inability to eliminate the risk by the exercise of reasonable care
4. the extent to which the activity is not a matter of common usage
5. inappropriateness of the activity to the place where it is carried on
6. The extent to which the activity’s value to the community is outweighed by
its dangerous attributes.

No one factor is determinative. ”

We shall now apply these 6 factors of Sec. 520 to the case at bar.
First, the extent to which the activity is not a matter of common usage was
admitted by the client when they were persuaded by Chip to use chemical fertilizers
and pesticides even though they are known to be producers who are devoted to organic
agricultural practices.

Second, inappropriateness of the activity to the place where it is carried on was

also shown when according to the client the Sutton Township is an area of rolling hills
that has long been agricultural. In facts a number of producers , including Mistover
Acres LLC, was devoted to organic agricultural practices.
Third, high degree of risk of some harm to the person, land, or chattels of others
& the likelihood that the resulting harm will be great is expressed by the User’s
Guide for MU-83 application when it indicated that persons applying Mu-83 should use
caution and be aware that pesticide “drift” is always a risk of pesticide application.

Fourth , the the User’s Guide for MU-83 application also reveals the inability to
eliminate the risk when it clearly stated that drif may be toxic to aquatic organisms in
neighboring areas. Drift will occur with EVERY application.

Fifth, The extent to which the activity’s value to the community is outweighed by
its dangerous attributes may be seen when after the aerial crop-dusting of the
pesticide was done , Genesee Trout Inc. alleges that a higher expected percentage of
its trout stock has died . They also alleged that a number of their egg hatchings has
substantially declined . They further claim that the cost to clean the ponds and restock
the trout will exceed 51 million.

It may be deduced that the aerial crop-dusting of MU-83 is an ultra hazardous activity
and as previously stated, those who engage in ultra hazardous activities are subject to
strict liability for the harm caused to the innocent as a result of the activity. Thus , Petra
Flynn is subject to strict liability for the harm caused to Genesee Trout Inc.

Atty. I am asking regarding my grade. Although I did not cheat, I also know that I am not the best writer.
I would like to inquire about my grade and if possible notes on what I need to improve. I have tried to
apply some of the works from our previous activity especially those from my classmates who are able to
write well but I still know I have a lot to work on.