Board liable for use of banned spray

Question: Our San Pedro homeowner association board hired an arborist because the gardeners ruined the common area landscape. The arborist’s report noted that using an all-inclusive, trunk-injectable insecticide that would not harm humans or animals could save the pine trees that were being attacked by destructive insects. Due to board inaction, a number of pine trees died of disease.

A year later, the board announced the landscaping company was going to spray the trees, even though the expert’s report stated that spraying is not effective in this situation. The report said injection was the safest method of treatment because it would not subject humans and animals to insecticide spray on the ground or by air.

Four days before the spraying, notices were placed on owner mailboxes. The notices stated: “The crews have been scheduled to apply pesticides on your property. The products to be applied include Dursban Insecticide. This product is considered safe when applied properly; however, we recommend that residents and their pets avoid contact with newly applied products. Additionally, we would recommend closing windows and turning air conditioners off during spraying. Should you have questions, contact the pesticide company.”

Homeowners notified the board of Dursban’s known toxicity and that the chemical had been pulled from the shelves several years ago. The spraying should have been canceled. I mistakenly believed the board member to whom information was relayed would immediately convey concerns to other board members, but he didn’t. The management company told me it advised the board to go ahead and spray and that it was a board decision.

Can the board be held accountable for not considering health hazards to the homeowners? What responsibility does the board director bear for failing to notify the other directors of the homeowner letter about the pesticide risks?

Answer: No matter who informs an individual board director, that information automatically constitutes notice to all other board members. The burden to communicate that information to other directors is incumbent on the member who received the information.

Besides breaching the duty the director owes to others serving with him, the entire board may be individually liable for not performing its due diligence. To be sure, when health and safety issues are involved, the board’s actions come under much closer scrutiny.

Once informed by homeowners of the pesticide’s known toxicity and that the chemical had been pulled from the shelves, the entire board had an unequivocal duty to curtail its activity and investigate the matter immediately. Ignoring homeowners’ and the arborist’s warnings could subject the board individually or the entire association to liability for injuries caused by the spraying.

A board that disregards warnings and instead chooses to rely on the advice of a management company in the spraying of potentially hazardous chemicals has not only breached its fiduciary duty, but its actions may be criminal, should death result.

The Environmental Protection Agency’s website www.epa.gov reports that in an agreement with the manufacturer of the pesticide, Dursban production will cease and is to be “phased out of all home, lawn and garden uses, and the vast termite control uses.” The agreement mandates that all uses of Dursban were to be phased out by the end of 2003 where children could be exposed or where nursing homes exist.

When any substance is determined to be hazardous and dangerous to humans to the extent it is banned, use of that material is against the law. Even the most insignificant injury to an owner or guest could result in liability for the company using it and the individuals who allowed it to be used.

Owners can stop the spraying before it begins by bringing an action against the board and association for “declaratory and injunctive relief.” Write the board and demand that members substantiate their actions. Ask what steps were taken to determine the safety of the pesticide. Given the EPA’s ban and recent penalties amounting to millions of dollars involving Dursban and other pesticides, demand an immediate reexamination of their decision.

Please send questions to: P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to: NoExit@mindspring.com.