March 20, 2015
Dear Mr Carlos Santiago,
Mr Alfonso Ribeira owns one hectare land, which he uses for producing ethical foie gras. He does this by using a method of forced-feeding geese. Ethical foie gras is produced by making use of the natural instinct of geese to eat the wild yellow lupines seeds in the winter months. Which is then used for the production of foie gras.
Due to the conduct of which occurred on 1 December 2014 – when insecticide was applied on my client’s property by the defendant Mr. Carlos Santiago – my client, Mr Alfonso Ribeira, has suffered losses both towards his geese and his business.
Therefore I hereby demand, on behalf of my client Mr. Alfonso Ribeira, a sum of (approximately) ‘10.000,- to compensate these loss(es). This liability is based on the basic rule for tort liability in the Draft Common Frame of Reference (DCFR) found in Art. 1:101, (1):
”A person who suffers legally relevant damage has a right to reparation from a person who caused the damage ‘intentionally’ or ‘negligently’ or is otherwise accountable for the ‘causation’ of damage.”
The demand has been established on the basis of negligence and causation, which has lead to legally relevant damages. These actions are the following:
You were aware of Mr Alfonso Rebeira’s business on his hectare;
The insecticide comes with a precaution measure, on when and how to use it – making it evident that it should not be applied on windy days – for which you have ignored.
The insecticide was blown on the lupin seeds.
You were fully aware that the geese were eating the seeds, and that this would cause in their death, yet no warning was given to your neighbor at the time that the product was sprayed.
The death of the geese has caused damage to Mr Alfonso Rebeira’s business and therefore an economic detriment.
The fact that you used the insecticide on a day which was prescribed NOT to use, has led to the chain of liable activities. The decision to use the insecticide on a windy day has resulted in negligent behavior, according to Article 3:102:
‘A person causes legally relevant damage negligently when
that person causes the damage by conduct.
Does not meet the particular standard of care provided by a statutory provision whose purpose is the protection of the person suffering the damage from that damage.
Does not otherwise amount to such care as could be expected from a reasonably careful person in the circumstances of the case’
On the one hand you have followed the statutory regulations by applying the insecticide between the required months, as stated in the regional Insecticide Regulation (2008). On the other hand you did not amount to the expected care when you sprayed the insecticide on a windy day regardless of the warning stated on the label. Therefore you have not met the standard stated in Article 3:102 (b). This makes you liable for negligence.
Regarding the insecticide regulation, you have had enough time to use the product on a windless day between the months.
Furthermore, since you have had more than enough time to spray the insecticide on a windless day after the 1st of December, you have acted negligently.
The activity that occurred negligently: on 1 December 2014, (the defendant) Carlos Santiago applied an insecticide to his young olive trees in accordance with the regional Insecticide Regulation (2008) which stated:
* Insecticide can be applied only from 1 May to 1 January at the discretion of the user.
The label on the insecticide prescribed the following precaution;
To spray the insecticide on windless days.
Art. 4:101, (1)
(1) A person causes legally relevant damage to another if the damage is to be regarded as a consequence of:
‘ (a) That person’s conduct; or
‘ (b) a source of danger for which that person is responsible
(2) In cases of personal injury or death the injured persons’ predisposition with respect to the type or extent of the injury sustained is to be disregarded
Alfonso Ribeira started a business producing ethical foie gras.
– Carlos owns the adjacent hectare.
(Ethical foie gras is produced by making use of the natural instinct of geese to eat acorns, different types of grasses and the wild yellow lupines seeds in the winter months)
On 1 December 2014, Carlos applied an insecticide to his young olive trees in accordance with the regional Insecticide Regulation (2008).
Insecticide can be applied only from 1 May to 1 January at the discretion of the user.
here is light wind in these months and therefore the toxic product does not easily spread to neighboring fields.
The product labels also warn users to spray the insecticide on windless days.
On 1 December 2014 a strong wind hit the region. Carlos, carried out his plan to spray his trees on that day.
The yellow lupines were exposed for a few days to the insecticide.
Result: 50 geese died because they ate the seeds of the yellow lupines.