Who Is Liable for the Amarillo Phosphine Gas Deaths?

By Michael GrossmanJanuary 05, 2017Reading Time: 10 minutes

On January 2, 2017, accidental exposure to phosphine gas led to the deaths of 7-year-old Felipe Balderas, 9-year-old Johnnie Balderas, 11-year-old Josue Balderas, and 17-year-old Yasmeen Balderas. In addition, 5 family members, including 45-year-old Martha Balderas, who is in critical condition, and 10 first-responders were injured.

According to initial reports, it is believed that a family member applied a regulated pesticide underneath the home. These reports identify the product in question as Weevil-Cide, a pesticide whose active ingredient is aluminum phosphide. This treatment reportedly left a foul odor, which someone attempted to get rid of by washing the pesticide away. Unfortunately, when it comes into contact with water, aluminum phosphide produces deadly phosphine gas that can destroy the lungs and cause long-term health problems. It appears that gas is what caused the deaths and injuries to the family.

According to published reports, no one in the family is licensed to buy or use Weevil-Cide and a family member appears to have obtained it from a friend. At this time it is unclear if the friend is licensed to possess the pesticide, either.

Weevil-Cide warning label
If you want to see just how dangerous Weevil Cide is, click the image to read the warning label.

The most common use for Weevil-Cide is applying it in well-ventilated fields or in grain silos storing crops that are not going to be used for human consumption. Due to how dangerous aluminum phosphide is, it is highly regulated and can only be bought and sold by people who are properly licensed to handle dangerous chemicals. This poses the question, where did these tightly regulated chemicals come from?

How Texas Regulates Dangerous Pesticides

I don't think the news reports have done justice to just how difficult it is to legally obtain the chemicals that led to the deaths and injuries in Amarillo. In order to be able to legally purchase and use aluminum phosphide in Texas, one has to have a Private Pesticide Applicator License.

Private Pesticide Applicator licenses are issued by the Texas Department of Agriculture. It appears that anyone can get one in 8 simple steps. Some of the more arduous steps include a Texas Private Applicator Training Course, provided by Texas A&M. After completing that course and obtaining a certificate, there's a bunch of paperwork to fill out, which permits one to sit for a license test. I can't find any information about how long the test is, but if one gets a passing score of 70% and fills out even more paperwork, the Department of Agriculture will issue the license.

I mention all of this not because anyone was dying to know how to become a private pesticide applicator, but to show just how tightly these pesticides are regulated and that not just anyone is supposed to have access to them. As a community, we recognize that the side effects of using certain chemicals can be so awful that only those trained to use them properly should handle them. This is especially true for "just add water" deadly compounds like aluminum phosphide, a chemical the EPA classifies in its most dangerous tier of chemicals.

A Look at the Criminal Investigation

While some people may be inclined to read this story and fault the family member who was using this chemical for the resulting horror, the fact is that no one in this family should have been anywhere near aluminum phosphide.

We can infer that authorities don't see the matter that way either, given that there is an ongoing criminal investigation. Knowing the loss of life and the fact that the family shouldn't have been in possession of Weevil-Cide, such an investigation is prudent.

That being said, media reports are not optimistic that criminal charges will be filed. This may come as a surprise to many, but a deeper look into Texas law shows why there are reasons for pessimism.

When someone's careless, potentially illegal behavior results in the deaths of 4 children, it is a natural human response to want to hold someone accountable and "throw the book at them." In this incident, when we look at what is actually in the book, hopes for justice through the criminal system are quickly dashed.

From the reports that are available at this time, it is believed that a family member obtained the pesticide from a friend. Whether this friend was licensed or not is not currently known. Based upon these facts, we can surmise that either the pesticide was stolen from a licensed seller or that at some point a licensed seller gave or sold the product to someone without a license.

If it is the former case, then there are no criminal penalties to a license holder. If it is the latter then there are two relevant portions of Texas law, both found in the Texas Agriculture Code.

Section 76.071 states:

LICENSE REQUIRED.

  • (a) A person may not distribute in this state a restricted-use or state-limited-use pesticide or regulated herbicide without a valid current pesticide dealer license issued by the department.
  • (b) Except as otherwise provided by this section, a pesticide dealer must obtain a license for each location in the state that is used for distribution. If the person does not have a place of business in this state, the person may obtain one license for all out-of-state locations, but shall file as a condition to licensing a designation of an agent for service of process as provided by Section 76.042(d) of this code.
  • (c) A person must apply for a pesticide dealer license on forms prescribed by the department.
  • (d) A pesticide dealer may not distribute a restricted-use or state-limited-use pesticide or a regulated herbicide except to:
    • (1) a person licensed as a commercial applicator, noncommercial applicator, or private applicator;
    • (2) an individual working under the direct supervision of a licensed applicator;
    • (3) a certified private applicator;
    • (4) a licensed pesticide dealer; or
    • (5) a person who is licensed to practice veterinary medicine by the State Board of Veterinary Medical Examiners.

The part of the law most germane to the gas deaths in Amarillo are the sub-section d prohibitions against distributing chemicals to just anyone. By all accounts, no one in the family met any of the criteria for them to legally possess Weevil-Cide.

Of course, the one thing missing from this section is the penalty for violating this law. The pertinent sections of the law for that are:

Section 76.201

  • (e) A person commits an offense if the person:
    • (1) knowingly or intentionally uses, causes to be used, handles, stores, or disposes of a pesticide in a manner that causes injury to man, vegetation, crops, livestock, wildlife, or pollinating insects;
    • (2) violates Section 76.071(a);
    • (3) has a permit to apply a powder or dry-type regulated herbicide and applies a herbicide that does not meet the requirements of Section 76.144(c);
    • (4) violates a rule adopted under this chapter; or
    • (5) fails to keep or submit records in violation of this chapter.

and

Section 76.202

  • (b) An offense under Section 76.201(e) of this code is a Class A misdemeanor, unless the person has been previously convicted of an offense under that subsection, in which event the offense is a felony of the third degree.

Under Texas law, a Class A misdemeanor can be punishable by up to a year in jail and/or a $4,000 fine. This might not seem like that severe a punishment for actions that have led to the deaths of 4 children, but that's what the law says. That may also be why some news outlets are saying that it is unlikely that someone will be charged in this case.

Apropos of how bizarre the law can be at times, while you might get a year in jail for illegally distributing a deadly chemical and killing 4 people, the same Agriculture Code imposes a prison sentence of between 2 and 12 years for destroying or unlawfully reproducing a cattle brand.

It seems clear to me that the law holds the licensed seller accountable for any deaths that result from their improper disposal of a pesticide, which to my mind would include giving it to an unlicensed person, but given that this is my first foray into agricultural crime, the case law may be different.

However the criminal investigation shakes out, it seems that the family's prospects of getting justice through the criminal court system is admittedly remote.

Civil Liability and Enhanced Duty for License Holders in Texas

Unlike criminal law, civil law is a whole different animal. In most instances, the penalties are not set ahead of time like they are in a criminal case, but determined by a jury who hears the facts of the case. So even when a criminal penalty seems light given the particulars of the case, that does not limit the civil justice system from providing adequate compensation for victims of someone else's negligence.

Several things make this case, and others like it that involve license-holders, different from most common negligence lawsuits. The first is that license-holders and those with special training are held to a higher duty of care than the average person under Texas law. As it relates to the Amarillo gas deaths, at some point a licensee probably had to give the deadly pesticide to an unlicensed person. Whether that licensee was the friend from whom the family received the pesticide or somewhere else in the stream of commerce, a person who knew better likely gave these chemicals to someone who shouldn't have them.

If I give an over-the-counter pesticide to a friend and when he uses it someone gets injured, it's going to be difficult to say that I was negligent, because I am not an expert in pesticides. I could easily argue that there was no way I could know that there was a chance that the pesticide I gave him was going to harm someone.

Whomever first gave the Weevil-Cide to an unlicensed person doesn't have that defense. The necessary training for them to obtain a license to buy the product is proof that they knew, or should have known, just how deadly the product could be. Their license allows them to handle more dangerous chemicals than you or I could buy at Home Depot, but it also imposes on them a higher duty of care to make sure that those products are not misused.

Another aspect of this story that makes it interesting when looking at it through the prism of personal injury law is that it seems like it could be argued as what is known as negligence per se. Let me take a moment and explain the significance of being able to argue negligence per se.

In most personal injury cases, a defendant can argue that there was no way to foresee that their actions would harm anyone. In this case, a foreseeability defense would most likely be along the lines of "There's no way I could have known that the person who applied the pesticide would use it in such a dangerous manner." If a jury agrees, then the lawsuit fails.

However, negligence per se does away with that element. Instead, to find the defendant liable a plaintiff has to prove:

  1. A law exists and it was broken.
  2. The victims were part of the class of people the law was designed to protect.
  3. The action that violated the law was the proximate cause of the injuries.

In this situation, it wouldn't matter if the licensee could know if the product had the potential to be misused, since there was a law saying they couldn't give it to an unlicensed person in the first place. The point of licensing where it concerns dangerous items and chemicals is to protect certain people from the harm that can result from improper handling of something dangerous.

We can see this logic not only when in comes to pesticides, but also in how we treat guns and even alcohol. While there are private sales of guns and alcohol between unlicensed individuals, we require that those who sell these products on the retail or wholesale level to be licensed. This is because we acknowledge that certain people, children, felons, and the mentally ill shouldn't have firearms. Similarly, those under 21 shouldn't possess alcohol.

If a gun dealer sold a gun to a felon, no one would think twice about holding them accountable. The same goes for when a liquor store sells to a juvenile. It's no different when a person entrusted with safely handling, using, and trading extremely dangerous chemicals allows them into the wrong hands.

Liability and the Amarillo Phosphine Gas Incident

Some people will accuse me of making something out nothing and chalk the deaths and injuries in the Amarillo phosphine gas incident up to a tragic accident. For this line of thinking to make sense we would have to believe that sometimes people just stumble upon hazardous chemicals that create deadly vapors when they come into contact with exotic chemicals like water. If someone thinks that sounds like an unavoidable accident, they're entitled to their opinion.

It is difficult to argue that whoever allowed these chemicals to fall into untrained hands shouldn't have known better. There is no doubt that along the way they knew they were breaking the law, because all of the rules regarding the sale and transfer of these chemicals are covered in the class needed to get a license to have them in the first place.

To call the deaths and injuries in the Amarillo phosphine gas incident a tragedy is a misuse of the word. Tragedies by definition are when people are just going about their lives and the normal course of living brings about awful consequences. There is nothing normal about a family coming into regulated, hazardous chemicals, for which they have neither the knowledge nor the training to use in a safe manner.

Once the licensed dealer of these pesticides is uncovered, I found it hard to believe that reasonable people won't conclude that it was this person who set this terrible chain in motion when they permitted this restricted-use pesticide to fall into the wrong hands.

Following the facts of the case, it seems that there are only two possible scenarios for how these chemicals ended up in the hands of people who shouldn't have them. Either someone intentionally sold them to a person who didn't have a license or they were stolen. In the first scenario the seller would obviously be liable for any harm that resulted, because they were breaking the law.

Some may argue that if they were stolen, then there was nothing the licensed owner could do to prevent this. I would counter that it would depend on the circumstances surrounding the theft. If the chemicals turn out to be stolen and it is a one-time robbery from a secure location, then perhaps the license-holder would not have liability. However, in the real world that's not really how thieves operate. They tend to look for poorly secured items of value or businesses with flaws in their security that allow them to repeatedly exploit the same weakness.

Let's take chemicals out of the equation and imagine that a gun store had lax security. Periodically, thieves just wander in, help themselves to a few guns and then resell them to criminals in the community. The gun-owner could face potential civil liability for the misuse of these weapons if they failed to take greater security precautions, because part of dealing with dangerous items is making sure that they only get into the hands of people who can lawfully possess them. We'd scoff at the gun-store owner who tried to argue that robberies just happen, which is why legitimate gun merchants secure their wares behind counters, put bars on their windows, maintain monitored security systems, and even place concrete pylons in front of their store to prevent smash and grabs.

Shouldn't someone who deals in deadly chemicals be held to the same standard? Most of us would probably think so and the law agrees.

Unless we're willing to defend the law, both criminally and civilly, there is really no disincentive to people who want to make some extra money by selling these chemicals to people who have no business using them in the first place. What happened in Amarillo is exactly the reason that these chemicals are regulated in the first place.