Whitehawk v. Clark

• Decision Date: 29 June 1989
• Docket Number: No. 88-582,88-582
• Citation: 238 Mont. 14,776 P.2d 484
• Parties: Phil WHITEHAWK and Connie Bellet, Plaintiffs and Appellants, v. Stan CLARK, Defendant and Respondent.
• Court: Montana Supreme Court

Page 484

776 P.2d 484

238 Mont. 14

Phil WHITEHAWK and Connie Bellet, Plaintiffs and Appellants, v. Stan CLARK, Defendant and Respondent.

No. 88-582.

Supreme Court of Montana.

Submitted on Briefs April 27, 1989.

Decided June 29, 1989.

Karl Knuchel, Livingston, for plaintiffs and appellants.

J. Robert Planalp, Landoe, Brown, Planalp and Kommers, Bozeman, for defendant and respondent.

HARRISON, Justice.

Plaintiffs, Phil Whitehawk and Connie Bellet (Whitehawks), appeal from a jury verdict rendered in the Sixth Judicial District, Park County, the Honorable Byron L. Robb presiding, in favor of the defendant, Stan Clark. Plaintiffs initiated the action seeking to recover damages for the destruction of personal property. We reverse and remand for a new trial.

The Whitehawks rented a log cabin and four outbuildings located near Wilsall, Montana, from the defendant Stan Clark. The Whitehawks resided in the cabin and used the outbuildings to store various personal items, including art work, musical instruments, musical recordings and historical documents. Much of the material stored in the outbuildings were used in connection with the Whitehawks' musical performances entitled "Inspirada Americana."

On April 28, 1985, Duane Clark, son of the defendant, began burning ditches on the family ranch southeast of the property rented by the Whitehawks. In the early evening hours, a slight breeze caused the fire to move out of the ditches, burning brush and swamp area to the northeast. Duane tended the fire throughout the day and returned home at 6:00 p.m. for dinner. Later, Duane received a phone call from the Whitehawks expressing concern over the fire. Duane returned to the field and continued to watch the fire until approximately 10:00 p.m.

The testimony at trial conflicted regarding the fire activity during the night and the following morning. Duane testified that when he returned to the field in the late evening, the fire had diminished to only embers and smoke. In addition, Duane stated that he viewed the field the next morning and found the embers and smoke completely extinguished. Thereafter, Duane left the area to continue work with his father in another portion of the ranch several miles away.

On the other hand, the Whitehawks testified that throughout the night, they could see both embers and flames. However, they testified that the following morning, no embers were visible, but a substantial amount of smoke was present. The Whitehawks stated that they remained concerned about the fire, but that a heavy dew, a backburn, a still wind and lack of any embers reassured them that they could leave their residence for a doctor's appointment. Additionally, Mr. Whitehawk testified that he spoke to Duane in the morning and was assured that Duane would continue to watch the area. Duane denied the conversation entirely.

During the afternoon, the fire flared up, sweeping across the marshes and open fields. When the Whitehawks returned home in the afternoon, they found three of the four outbuildings completely destroyed and fire threatening the log cabin. Mrs. Janet Clark, Duane's wife, was on the premises when the Whitehawks returned. Immediately, the Whitehawks began fighting the fire. After 45 minutes, the local volunteer fire department arrived and extinguished the blaze.

The Whitehawks filed suit against Stan Clark, alleging negligence and strict liability. On September 18, 1987, the Whitehawks moved for summary judgment on the issue of liability, arguing that Sec. 50-63-103, MCA, imposed strict liability upon one who intentionally starts a fire which destroys property, and therefore, they were entitled to judgment as a matter of law. The District Court denied the motion without opinion.

On August 29, 1988, the case was tried before a twelve member jury. Upon the completion of testimony, the District Judge met with the attorneys to settle jury instructions and prepare a special verdict form. At this time, the District Court rejected plaintiffs' Proposed Instruction No. 22 concerning Sec. 50-63-103, MCA, concluding the statute pertained only to the intentional burning of excess forest material. Thereafter, the jury returned a verdict in favor of the defendant.

The Whitehawks appeal the following issues:

1. Does Sec. 50-63-103, MCA, apply to the instant case?

2. Did the District Court err when it denied plaintiffs' motion for summary judgment?

3. Did the District Court err when it refused to instruct the jury on plaintiffs' Proposed Instruction No. 22 regarding Sec. 50-63-103, MCA?

Section 50-63-103, MCA, states in part:

Liability of offender for damages and costs. Any person who shall upon any land within the state, whether on his own or on another's land, set or leave any fire that shall spread and damage or destroy property of any kind not his own shall be liable for all damages caused thereby, and any owner of property damaged or destroyed by such fire may maintain a civil suit for the purpose of recovering such damages. Any person who shall upon any land within this state, whether on his own or on another's land, set or leave any fire which threatens to spread and damage or destroy property shall be liable for all costs and expenses incurred by the state of Montana, by any forestry association, or by any person extinguishing or preventing the spread of such fire. (Emphasis added.)

This Court has been called upon to interpret the statute on two occasions. Montana Dept. of Natural Res. and Cons. v. Clark Fork Logging (1982), 198 Mont. 494, 646 P.2d 1207; and Belue v. State (1982), 199 Mont. 451, 649 P.2d 752. Defendant contends that our previous decisions control the outcome of the first issue which questions the applicability of Sec. 50-63-103, MCA. Defendant argues that the statute applies only to the burning of excess forest materials. We find defendant's interpretation unduly restrictive.

In Clark Fork Logging, defendants entered into a timber sale contract with the United States Forest Service to log an area in Sanders County. During operation, an employee started a chain saw which backfired and ignited a forest fire. The Department of Natural Resources and Conservation (DNRC), acting under contract with the United States Forest Service, extinguished the fire at a cost of $126,721.80. Thereafter, the DNRC brought suit to recover the cost under theories of strict liability and negligence. On appeal, we affirmed the lower court's grant of summary judgment against DNRC's strict liability count, holding:

As they are used in section 50-63-103, MCA, the words "set or leave a fire" refer to the deliberate act of burning excess forest material. The statute does not apply to the instant situation. The fire was not deliberately ignited. Rather, it accidentally started when a spark from the chain saw ignited a slash pile. Under these facts summary judgment on Count I was proper. (Emphasis added.)

Clark Fork Logging, 646 P.2d at 1209.

Subsequently, this Court issued its decision in Belue. During a severe windstorm, a fire ignited near a slag pile. The fire spread four and one half miles across defendant's land to plaintiffs' property. Relying upon Clark Fork Logging, we concluded the facts did not support the applicability of Sec. 50-63-103, MCA. Belue, 649 P.2d at 754. Our decisions emphasized that the statute applied to the intentional setting of a fire.

None of the factual circumstances which limited the statute's applicability in Clark Fork Logging, or Belue, are present here. Our review of the statute failed to disclose limiting factors which would render the provision inapplicable to private landowners, or language which...