Oberg v. Department of Natural Resources, 54763-7

CourtUnited States State Supreme Court of Washington
Citation114 Wn.2d 278,787 P.2d 918
Docket NumberNo. 54763-7,54763-7
PartiesNorman A. OBERG, Juanita Fruit, Cascade Ranches, Inc., and Olma Brothers Corp., d/b/a Antoine Valley Ranch, a joint venture, Virgil W. Palmer and Judy A. Palmer; Daniel L. Vaughn and Sandra Vaughn, Martin H. Andrews, George E. Harrington and Donna Harrington, Donald W. Harrington and Rebecca A. Harrington, Tom DeGraff, Diane Amann, Carl Smith and Susan Smith, Michael P. Bradburn, Robert Sorenson, Robert L. Thompson, Robert Leland, Oakley Rowe and Violet Rowe, Robert D. Baker and Lawana G. Baker, Kirk Hinkley and Jill Hinkley, Alain Champagne, Paul M. Demeter, George W. Frawley, James C. Kielsmeier, Brent and Patricia Lambert, Donald and Cora Lawson, Gerald W. Phillips, Val Roehrich, Jerry Scott, Richard E. Gruber and Alice C. Gruber, Donald Super and Kristen Super, Respondents, v. DEPARTMENT OF NATURAL RESOURCES, Appellant.
Decision Date15 March 1990
Kenneth Eikenberry, Atty. Gen., John W. Hough, Asst. Natural Resources Div. QA-41, Olympia, Mark S. Green, Asst., Seattle, for appellant

Stanislaw, Ashbaugh, Chism, Jacobson & Riper, Richard M. Stanislaw, John S. Riper, David C. Burkett, Terry R. Marston, II, Seattle, for respondents.


Plaintiffs sued the State of Washington, acting through its Department of Natural Resources (DNR), for damages sustained as a result of a fire which escaped from DNR land. The fire became known as the Barker Mountain fire. Barker Mountain, east of Tonasket, is bordered on the south by a state highway and on the north by the Siwash Creek Valley. A portion of this land is owned by the State. Verbatim Report of Proceedings, at 122-23 (Apr. 15, 1987).

In the early morning hours of a Wednesday, a lightning storm started numerous fires in northeastern Washington, including the Barker Mountain fire. DNR describes what became the Barker Mountain fire as a "small lightning strike fire." Brief of Appellant, at 7.

The initial fire was but a quarter mile off a paved highway, in terrain described as "gentle." It was initially no larger than a campfire. By about 6 a.m. on that Wednesday DNR had received a telephone report of a fire on the South These facts are only relevant as a background for the legal issues. This is so because the jury, in answers to special interrogatories, found (1) the fire which damaged plaintiffs' property started on DNR land, (2) DNR was negligent, and (3) negligence was the proximate cause of plaintiffs' damages. In addition, DNR stipulated that "plaintiffs relied upon the DNR to furnish them with fire protection." Verbatim Report of Proceedings, at 95-96 (Apr. 13, 1987). DNR does not challenge the sufficiency of the evidence to support the specific findings of negligence, nor does DNR assign error to any instructions given nor to the failure to give any proposed instructions. We necessarily assume, because it is now beyond challenge, that there was sufficient evidence that DNR was negligent in allowing the escape of fire from its land. Further, we also make the critical assumption that the jury was properly instructed on the duties which DNR had and which it breached. In its briefs DNR recounts much detail about fighting these fires. All of the fire fighting difficulties faced by DNR and all of the demands placed upon its resources were before the jury. Since DNR raises no challenge to the admissibility of any evidence, no challenge to the sufficiency thereof, no challenge to the amount of damages nor any challenge to the legal correctness of instructions (which are not a part of the record), the trial proceedings are conclusive.

                side of Barker Mountain.   DNR dispatched some fire fighters on Wednesday afternoon, but by Wednesday evening these forces were withdrawn.   The fire escaped from DNR property on Thursday afternoon and subsequently, plaintiffs' properties to the north of the initial fire lines on Barker Mountain were damaged.   On these days DNR was fighting not only the Barker Mountain fire but other major and minor fires

DNR's sole assignment of error is that the trial court erred in denying its motion for judgment notwithstanding the verdict. The essence of DNR's position is that the public duty doctrine prevents liability from attaching to its negligence. It admits that it has statutory fire fighting duties and common law and statutory duties as a landowner. However, DNR contends that its fire fighting duties are only to the public, and these plaintiffs are owed no duty in particular. DNR argues that its duties as a landowner are "subsumed" (its phrase) into its fire fighting We hold that DNR had a duty to these plaintiffs and its landowner duties are not "subsumed."

duties when it fights more than one fire in the same area.

The legal issues presented are very narrow indeed. Particularly enlightening is DNR's own narrowing of its escape route by these statements:

There is no dispute that Natural Resources has a duty to provide fire protection from uncontrolled fires on forest land, or which threaten forest land. RCW 76.04.015 and .750.

Brief of Appellant, at 41.

We do not dispute that Natural Resources would be liable under RCW 76.04.730 for the escape of a fire from its land under normal circumstances.

Brief of Appellant, at 54.

Private landowners in Washington have a common law duty to exercise reasonable care in preventing fire from spreading to lands of neighboring owners. A similar duty is imposed by statute, e.g., RCW 76.04.730.

(Citations omitted.) Brief of Appellant, at 53-54. We note, as discussed hereafter, DNR is within the statutory definition of "landowner."

There is no dispute that Natural Resources owes a duty of fire protection to those forest landowners who pay the forest protection and fire suppression assessments. State ex rel. Showalter v. Goodyear, 30 Wn.2d 834, 194 P.2d 389 (1948); State ex rel. Sherman v. Pape, 103 Wash. 319, 323, 174 Pac. 468 (1918).

Clerk's Papers, at 34.

We start our analysis of DNR's arguments with the premise that DNR, whether acting in its governmental or proprietary capacity, is liable for its tortious conduct as would be a private person or corporation. RCW 4.92.090. Given this all-encompassing waiver of sovereign immunity, we have said: "[d]efendants are governmental entities, but We first identify the various statutory and common law duties of defendant DNR. Next we examine to whom each of these duties are owed; if a duty is owed by DNR solely to the public in general, the public duty doctrine will operate to foreclose a negligence claim by plaintiffs; if, on the other hand, DNR owes any particular duty to the plaintiffs, separate from the general public, the plaintiffs may bring a claim under one of the exceptions to the public duty doctrine. Hartley, at 781, 698 P.2d 77

in only rare instances does this preclude liability." Hartley v. State, 103 Wash.2d 768, 781, 698 P.2d 77 (1985).

Initially, we consider DNR's potential liability as a landowner which negligently allowed a fire to escape from its land. Parenthetically we note that the fact that the initial small fire was caused by lightning is of no consequence:

... there may be negligence [by the landowner] ... in his failure to use due diligence in preventing the spread of a fire originating upon his own land though it so originate[d] without any act or fault of his own.

Sandberg v. Cavanaugh Timber Co., 95 Wash. 556, 558, 164 P. 200 (1917).

The statutes governing landowner liability are found in RCW Ch. 76.04. The present contents of that chapter were recodified in 1986, after this fire, but DNR specifically adopts the recodified statutes as controlling. 1

The obvious question is whether DNR is within the ambit of the statutes creating landowner duties. Clearly it is. RCW 76.04.005 specifically defines "owner of forest land," "landowner," or "owner" to include the owner of any public or private forest land. RCW 76.04.005. Further, even DNR must pay fire protection assessments for its land. RCW 76.04.610 provides that every nonfederal public body is liable for such assessment. Thus, the Legislature's express inclusion of DNR within the landowner category indicates An owner of forest land has a positive duty to provide adequate protection against the spread of fire thereon or therefrom. RCW 76.04.600.

that the sections governing landowner liability apply to DNR.

The standard of care required of a landowner in preventing the spread of fire is set by RCW 76.04.730:

It is unlawful for any person to negligently allow fire originating on the person's own property to spread to the property of another.

By definition in the statute, RCW 76.04.005, DNR is a landowner, and has a duty as a landowner to provide adequate protection against the spread of fire from its land. By the unchallenged jury's answers, DNR has breached RCW 76.04.600 and .730.

As to a common law duty upon a landowner to use due care in preventing the spread of fire, DNR admits that such common law duty exists in Washington. Jordan v. Spokane, P & S Ry., 109 Wash. 476, 480-81, 186 P. 875 (1920); Sandberg v. Cavanaugh Timber Co., 95 Wash. 556, 558-62, 164 P. 200 (1917).

Where the federal government allegedly acted negligently in its capacity of landowner and fire fighter, the Ninth Circuit recognized

it is the law of Washington ... that a land occupier has an affirmative obligation to use care to confine any fire on his premises, regardless of its origin, in favor of all persons off his premises who are subjected thereby to an unreasonable risk of damage due to escape of the fire.

Arnhold v. United States, 284 F.2d 326, 328 (9th Cir.1960), vacated 166 F.Supp. 373 (W.D.Wa.1958), cert. denied, 368 U.S. 876, 82 S.Ct. 122, 7 L.Ed.2d 76 (1961).

That court further noted that the federal government, by agreement,

had undertaken to protect all non-United States owned land in the region from fire and to take "immediate vigorous action" to control all fires...

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