Koos v. Roth

• Citation: 652 P.2d 1255,293 Or. 670
• Parties: George KOOS and Agnes V. Koos, Respondents on review, v. Kenneth ROTH, Petitioner on review. TC 50967; CA 18924; SC 28356.
• Decision Date: 30 November 1982
• Court: Supreme Court of Oregon

Page 1255

652 P.2d 1255

293 Or. 670

George KOOS and Agnes V. Koos, Respondents on review, v. Kenneth ROTH, Petitioner on review.

TC 50967; CA 18924; SC 28356.

Supreme Court of Oregon.

Argued and Submitted May 5, 1982.

Decided Oct. 26, 1982.

Reconsideration Denied Nov. 30, 1982.

Paul D. Clayton, Eugene, argued the cause for petitioner on review. With him on the briefs were Luvaas, Cobb, Richards & Fraser, P.C., Eugene.

Dean M. Quick, Albany, argued the cause for respondents on review. With him on the brief were Weatherford, Thompson, Brickey & Powers, P.C., Albany.

Charles F. Adams and Richard S. Gleason, Portland, filed a brief for amicus curiae Industrial Forestry Ass'n. With them on the brief was Stoel, Rives, Boley, Fraser and Wyse, Portland.

Donald A. Haagensen and Mildred J. Carmack, Portland, filed a brief for amici curiae Oregon Seed Council, Oregon Seed Trade Ass'n, and Oregon Ryegrass Growers Ass'n. With them on the brief were Ridgway K. Foley, Jr. and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

John R. Miller, Salem, filed a brief for amicus curiae Oregon Farm Bureau Federation.

Michael F. McClain, Corvallis, filed a brief for amicus curiae Field Burning Defense Committee in the Court of Appeals. With him on the brief was McClain & Brown, Corvallis.

Before DENECKE, C.J., ^* LENT, LINDE, TANZER, PETERSON and CAMPBELL, JJ.

LINDE, Justice.

We are called upon to decide whether a farmer who employs field burning as an agricultural technique is strictly liable to pay damages when the fire enters upon and destroys a neighbor's property, without any need to show that the field burning was conducted negligently. The Court of Appeals so held in a decision in banc, three judges dissenting, 55 Or.App. 12, 637 P.2d 167 (1982), and the theoretical and practical importance of the issue led us to allow review.

The course of events is essentially undisputed. Defendant was engaged in the commercial production of grass seed on 55 leased acres in Linn County, near the I-5 interstate highway. After the grass seed was harvested, defendant and a crew of men equipped with mobile water tanks burned the field by setting fire to dry straw, having first plowed a protective strip around the perimeter. While defendant's field was being burned, plaintiffs' adjoining field caught fire, causing damage to real and personal property stipulated at $8,017. Although no one testified to seeing how the fire on plaintiffs' property started, the witnesses, mostly members of defendant's crew, agreed that probably a whirlwind carried burning material from defendant's field. The record shows that the fire also spread to other nearby property of persons not involved in this action.

Plaintiffs sued for damages on theories of trespass, negligence, and strict liability. At the conclusion of the trial, defendant moved for a directed verdict on the grounds that he would not be liable for an unintentional trespass unless his actions were either negligent or abnormally dangerous, that there was no evidence of negligence, and that agricultural field burning as conducted by defendant is not an abnormally dangerous activity. Plaintiffs moved for a directed verdict on their strict liability claim. The trial court denied plaintiffs' motion and directed a verdict for defendant on all counts.

On appeal, 43 Or.App. 383, 602 P.2d 1128 plaintiffs abandoned the negligence count and assigned as error only the denial of their motion for a directed verdict based on their strict liability theories of trespass and abnormally dangerous activity. Although technically the assignment of error did not include the allowance of a directed verdict for defendant, the parties and the Court of Appeals treated the trial court's rulings as "two sides of one coin." 55 Or.App. at 14 n. 3, 637 P.2d 167. This follows when the decision whether an activity is abnormally dangerous or otherwise subject to strict liability is a legal characterization to be made by the judge, as was stated in Loe v. Lenhardt, 227 Or. 242, 249, 362 P.2d 312 (1961). It is not contended in this case that the determination depends on disputed evidence of specific events or circumstances requiring jury adjudication. The Court of Appeals proceeded to reject plaintiff's claim for strict liability for trespass as such, relying on statements in Loe and in Hudson v. Peavey Oil Co., 279 Or. 3, 566 P.2d 175 (1977) that negated this theory at least with respect to substances released from defendant's land. ¹ The court concluded, however, that the trespass resulted from an "ultrahazardous" activity, defendant's field burning, and that therefore plaintiffs were entitled to a directed verdict for the stipulated damages. 55 Or.App. at 18, 637 P.2d 167.

I. Abnormally dangerous activities.

The modern evolution of this form of strict liability in Oregon can be traced from Bedell v. Goulter, 199 Or. 344, 361, 261 P.2d 842 (1953), which took as its starting point that this state followed the rule of Rylands v. Fletcher, (1868) L.R., 3 H.L. 330, 1 Eng.Rul.Cas. 236, with respect to damage done by the escape of stored water. ² Bedell applied the rule to explosives, holding defendants strictly liable for a trespass when their blasting operations damaged a dwelling about 1500 feet away. Liability later was denied, however, when explosives caused harm uncharacteristic of their dangerousness, the death of mink frightened by the noise. Gronn v. Rogers Construction, Inc., 221 Or. 226, 350 P.2d 1086 (1960). The blasting in those cases was intentional, but the mere storage of highly explosive gas vapors in a populated area sufficed to impose strict liability for wrongful death from a nonnegligent explosion. McLane v. Northwest Natural Gas, 255 Or. 324, 467 P.2d 635 (1970). In 1961, Loe v. Lenhardt, supra, found an "extra hazardous" activity in aerial cropdusting with a chemical defoliant which damaged a neighbor's crops, a decision followed in Bella v. Aurora Air, Inc., 279 Or. 13, 566 P.2d 489 (1977).

Thus, after the acceptance of Rylands v. Fletcher, the activities giving rise to strict liability in modern Oregon cases have been the storage or use of explosive material and aerial spraying of destructive chemicals. How have the holdings been explained?

In Bedell v. Goulter, supra, the court adopted the reasoning of Exner v. Sherman Power Co., 54 F.2d 510 (2nd Cir.1931), quoting extensively from the opinion of Judge Augustus Hand in that case. The chief issue was not so much whether an explosion of dynamite, intentional or accidental, results in strict liability but whether the harm must result from the tangible impact of debris scattered by the explosion, and this court followed Exner to reject that distinction. Strict liability followed simply from the intrinsic dangerousness of explosives. Justice Lusk's extensive review of the cases quoted from Exner:

" 'When a person engages in such a dangerous activity, useful though it be, he becomes an insurer.' "

" ' * * * If damage is inflicted, there ordinarily is liability, in the absence of excuse. When, as here, the defendant, though without fault, has engaged in the perilous activity of storing large quantities of a dangerous explosive for use in his business, we think there is no justification for relieving it of liability, and that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss.' "

199 Or. at 352, 261 P.2d 842. The opinion then quoted, though it did not particularly rely on, Restatement of Torts § 520, which at that time defined an activity as "ultrahazardous" if it "(a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage." Only "common usage," but neither the particular location of the dangerous activity nor its social usefulness were factors in the rule:

"Considering the ultrahazardous character of the activity, we find no reason for making a distinction between the right of the owner of a dwelling house which is damaged by a blast set off in open country 2000 feet distant from his house, and the right of an owner of a skyscraper in a large city damaged by a blast set off on adjoining property; or for distinguishing between a single blast which demolishes a house, and a series of blasts continued over a long period of time which crack the foundations of a house and cause it to settle. In either case the ensuing loss should be considered the blaster's business."

199 Or. at 363, 261 P.2d 842.

Loe v. Lenhardt, supra, followed the reasoning of Bedell to impose strict liability on aerial spraying of crops with destructive chemicals. It added to the analysis a substantive element of attention to legislative determinations concerning the dangerous activity and the procedural rule that the legal question of strict liability must be decided by the court. 227 Or. at 250-253, 362 P.2d 312.

McLane v. Northwest Natural Gas, supra, in turn, amended the preceding explanations in three respects. Justice Holman's opinion made clear that the danger of an activity did not depend on the frequency with which it miscarries, though this could be an important indicator, and that the destructive effects of the activity need not occur beyond the defendant's premises. Also, McLane disavowed the statement in Bedell, quoted above, that would disregard the place in which the activity is carried on, citing a proposed change in Restatement (Second) § 520 that "makes the locality in which the activity is carried on a relevant factor." The locality was said to be relevant to determining whether an activity is "extraordinary, exceptional, or unusual," 255 Or. at 328-329, 467 P.2d 635. This was reaffirmed in Reter v. Talent Irrigation District, supra note 1, which denied strict liability under Rylands for underground seepage from an irrigation ditch....