### FILED SEPTEMBER 10, 2015 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE CLINESMITH CATTLECOMPANY, ) INC., a Washingtoncorporation; CALF ) No. 32314-5-III CREEK CATTLE COMPANY, INC., a ) Washingtoncorporation; J.W. HARDER ) LIVESTOCK, INC., a Washington ) corporation, a J.J.H. LIVESTOCK, INC., ) a Washingtoncorporationpartners of ) UNPUBLISHED OPINION HARDERRANCHES, a Washington ) generalpartnership; HERBERT and ) DOROTHYKENT, husband and wife; ) GLADYS KENT, TRUSTEE OF ) ALFRED R. KENTFAMILY TRUST; ) ALFREDJ. OCHOA a married man ) dealing as his separate property; andBAR ) URANCH CO., a Washington ) corporation, ) ) Appellants, ) ) 

### v. ) ) KINCH FARMS, INC., ) a Washingtoncorporation, ) ) Respondent. ) KORSMO, J.

- Appellants' property was damaged after a fire intentionally setby respondent Kinch Farms (Kinch) flared backto life and spreadto adjacentproperties. A jury,however, rejected their claims for damages. We affirm.No. 32314-5-III Clinesmith, etal. 

### v. Kinch Farms, Inc.
FACTS The fire in question was set on August 10, 2009, when Kinch conducted a controlled bum ofone ofits crop circles, "Circle 6", to manage disease and crop stubble. Kinch Farms is operated by experienced farmers Rod Kinch, Joe Kinch, and A.J. Miller. Kinch obtained a seasonal permit from the state Department ofEcology (DOE) that was good on specific "bum days." Kinch confirmed that August 10th was a "bumday" before starting the fire. Priorto setting the fire, Kinch created a fire break around Circle 6 by eliminating combustible material. It also stationed atractor and disc for creating fire breaks and a 1,000 gallon capacity watertruck near the operation. Despite these precautions, the fire spread to one ofKinch's adjoining circles and onto a neighbor's field at 4:00 p.m. that day. Kinch called the fire department and thenused their own equipmentto contain the fire. By the time the fire department arrived, the fire was mostly out. Around 7:00p.m. that night, the fire chiefdetermined that the fire was sufficiently extinguished. Afterthe fire department left the scene, Mr. Miller and Joe Kinch poured additional water on the concerning spots for two hours before leaving for the night at 9:00 p.m. Mr. Miller continuedto watch the bum area from his house throughoutthe night. The next morning, Mr. Miller and Rod Kinch both individually drove by the bum
areato be sure there was nothing ofconcern; the manager ofone ofthe neighboring

2No. 32314-5-III Clinesmith, etai. v. Kinch Farms, Inc. properties also inspectedthe burn area. The fire chiefreturned to the burn area. He saw nothing ofconcern and was satisfied that the fire was extinguished. Around I :00 p.m. that day Joe Kinch spotted smoke from his home. He contacted Mr. Miller who confirmed that the fire hadrekindled on the neighboring field. After contactingthe fire department, Mr. Miller and Joe Kinch returnedto the fire site with their equipment. The winds were strong that afternoon and the fire went from smoldering to raging. The fire ultimately consumed 5,000 acres ofthe neighboring downwind crops, pastures, equipment, fences, gates and buildings. Appellants, the damaged neighboring property owners (Neighbors), filed suit in the Adams County Superior Court. The matter ultimately proceeded tojurytrial before the Honorable David Frazier. Various motions were arguedprior to trial; the Neighbors attempted to exclude evidence flowing from the burnpermitthat they believedwould misinform thejury ofthe legal standards ofduty. In particular, they requested exclusion ofthe following: Argument andtestimony contending that the burn permit absolves or relieves Defendant from responsibility for any "hazardous, dangerous or negligent activities associated with the burn." Clerk's Papers (CP) at 303; Report ofProceedings (RP) (Sept. 26, 2013) at 23. The trial court denied the motion, but noted that "argumentto the effect that it absolves orrelieves the defendant ofresponsibility" would not be proper. RP (Sept. 26, 2013) at 23. The Neighbors then sought to exclude: 3No. 32314-5-III Clinesmith, etal. 

### v. Kinch Farms, Inc.
Argument and testimony that any actions ofthe volunteer fire departmentrelieve Defendant ofresponsibility for any "hazardous, dangerous ornegligent activities associated with the burn." CP at 303; RP (Sept. 26, 2013) at 23. The trial court also denied this motion, ruling that evidence concerning the fire department's involvement was admissible on the issue ofwhether Kinchexercised reasonable care. The trial court declined to rule on whetherto exclude testimony and argument about any shift in duty or fault as a result ofthe fire department's activities. In accordance with theserulings, testimony concerning the DOEpermit and the fire department's involvementwere admitted at trial. Without objection, Kinch used words like "jurisdiction," "authority," and "delegate," when questioning its witnesses. Forinstance, the fire chiefwas allowed to testifY that the fire department had the sole "jurisdiction" to set up a fire watch. He further explained when the fire department is called out "thefire chiefnowpretty much has control oftheir ground, and it's his call on what needs to be done with the situation at hand." Concerning the DOEpermit, Fire ChiefBrian Dainty testified that "DOE is God," explaining that when the DOE authorizes
a "burn day," farmers take advantage ofit because "[t]hey'rethe experts." Although not objecting to the testimony, the Neighbors then requested a curative jury instruction based on 6 Washington Practice: Washington PatternJuryInstructions: Civil 12.09, at 161 (6th ed. 2012) (WPI) (Nondelegable Duties):


### 4No. 32314-5-III Clinesmith, etal. v. Kinch Farms, Inc.
Defendant is not relieved ofits duty to kindle and care for a controlledburn upon its property and to prevent it from rekindling at such time and in such manner as would a prudent, careful person, to prevent it from spreading and doing damage to otherperson's property by delegating or seeking to delegate that duty to anotherperson or entity. CP at 470. The trial court declined to give the instruction because vicarious liability was not at issue in the case. RP (Oct. 15, 2013) at 109. Thejury was given standard instructions
on negligence. Thejury returned a defense verdict, finding on the special verdict form that Kinch was not negligent. Retaining new counsel, the Neighbors moved for a new trial. After the court denied thatrequest, the Neighbors then timely appealed to this court. ANALYSIS The Neighbors raise the same challenges that they presented in their motion for a
new trial, arguing that Kinch erroneously obtained legal opinion from their witnesses and that the court erred in not giving their requested instruction. We address the testimony issue before turning to the instructional challenge. Testimony andMotions in Limine The Neighbors contend that the trial court erred in denying the two noted motions in limine concerning the burn permit and the involvement ofthe fire department, leading to Kinch misusing the evidence. Because the trial court correctly determined that the



### 5No. 32314-5-III Clinesmith, etal. v. Kinch Farms, Inc.
evidence was relevant, there was no error in admitting the testimony. The failure to object to any questioning also forecloses any claim that Kinch misused the evidence. Since territorial times, Washington has recognized an action for negligent failure to contain a fire. 1 The statute currentlyprovides: Except as provided in RCW 76.04.760, ifany person shall for any lawful purposekindle a fire upon his or her own land, he or she shall do it at such time and in such manner, and shall take such care ofit toprevent it from spreading and doing damage to otherpersons' property, as a prudent and careful person would do, and ifhe or she fails so to do he or she shall be liable in an action on the case to any person suffering damage thereby to the full amount ofsuch damage. RCW 4.24.040. Also addressing the issue, RCW 76.04.730 more modernly states: "It is unlawful for any person to negligently allow fire originating on the person's ownproperty to spread to theproperty ofanother." Thejurywas instructed in the language ofboth of these statutes. CP at 726. Thejury, accordingly, also was instructed onthe requirements ofa negligence action, including the duty ofordinary care. CP at 720, 722-23. Evidence is relevant ifithas "anytendency to make the existence ofany fact that is ofconsequence to the determination ofthe action more probable or less probable than it would be without the evidence." ER401. Subject to limitations imposed by otherrules
orconstitutional principles, relevant evidence is admissible. ER402. A trialjudge's

I LAWS OF 1877, § 3, at 300. 6No. 32314-5-II1 Clinesmith, etal. v. Kinch Farms, Inc.
decision to admit or exclude evidence under these provisions is reviewed for abuse of discretion. Diazv. State, 175 Wn.2d 457,462,285 P.3d 873 (2012). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex reI. Carrollv. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). The Neighbors soughtto exclude evidence that DOE had authorized field burning that day as well as the fact that the fire department had responded and eventually left the
scene. This evidence was relevant to assessing the reasonableness ofKinch's behaviorit had checked with DOE before burning and it remained and watched the fire scene after the fire departmenthad departed. This information allowed thejuryto assess the reasonableness ofKinch's behavior in both setting the fire and then monitoring the scene after the fire had spread to other lands. These were tenable grounds to admit the evidence and, thus, deny the motions in limine. The trial court did not abuse its discretion. The Neighbors also assert that Kinch went too far in its questioning ofthe witnesses, particularly the fire experts, and had them testify as to the law. This argument fails for several reasons. First, there was never any objection to this testimony, so the Neighbors cannotpursue any claim oferror in this court. RAP 2.5(a). Second, since the court denied the motions in limine, none ofthe testimony could have violated the ruling. The trial court also expressly reserved further rulings as to the fire department's involvement, but was never asked to consider the testimony in light ofthat reservation. Finally, thejury was not instructed on any legal concepts such as delegation ofduty that 7No. 32314-5-111 Clinesmith, etal. v. Kinch Farms, Inc. might possibly have been implicated by the testimony. The fact that witnesses may use words that also double as legal concepts does not make that language improper. Without jury instructions addressing the legal issues, there would be no context for thejuryto possibly misuse the testimony. We also note that defense counsel did not exploitthe failed motions in limine in closing argument.2 Accordingly, there was no danger thatthejury would misapply the
now challengedtestimony and consider a legal theory otherthan negligence. The trial court did not err in its rulings in limine and the Neighbors have not preserved any claim oferrorrelated to the testimony they now seekto challenge. ProposedInstruction TheNeighbors also contend thatthe trial court erred in rejecting theirproposed curative instruction, based on WPI 12.09. The trial court correctly determined that the instruction was not applicable to the case. Well settled law governs instructional challenges. Jury instructions are sufficient ifthey correctly state the law, are not misleading, and allow the parties to argue their

2 One possible exception to this observation occurred when defense counsel arguedthat the fire department's departure from the scene without leaving a watch broke the proximate cause between Kinch's initial fire and the subsequent inferno. RP (Oct. 16, 2013) at42. Plaintiffscounsel did not object, butin rebuttal nicely addressed the issue by pointing out that Kinch could only escape responsibility ifthe fire department's actions causedthe subsequent losses. Id. at46-47. Sincethejury decided this case on the basis ofnegligence, notproximate cause, any error in makingthis argument was harmless. CP at 766-67. 8No. 32314-5-III Clinesmith, etal. v. Kinch Farms, Inc. respective theories ofthe case. State v. Dana, 73 Wn.2d 533, 536-537,439 P.2d 403 (1968). The trial court also is grantedbroad discretion in determining the wording and number of jury instructions. Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230 (1983). The Neighbors do not contendthatthe court's instructions were misleading or otherwise incorrect. Instead, they contend that their requested instruction was necessary to cure the testimony ofKinch's witnesses. We disagree. The court did not instruct, and Kinch did not attempt to argue, that responsibility for the fire was somehow delegatedto the fire department. The testimony acknowledged the simple truth ofthe situationwhen the fire department was on the scene, it was in charge ofthe fire. Therewas never any claim, by testimony or argument orjury instruction, that the department's presence
on the scene itselfabsolved Kinch ofresponsibility for the fire. And, ifthere hadbeen, the solution was for the Neighbors to challenge the inappropriate testimony or argument in orderto give the trialjudgethe immediate opportunity to correct any errors. Rather, this case was tried accordingto the dictates ofour statutory scheme. Was Kinch negligent in burningwhen it did and with the safety precautions it exercised, or did it act reasonably? The evidence allowed thejury to find for either side. Given that the fire escaped and did damage, ajuryverdict for the plaintiffs would have been understandable. Similarly, the defense presented evidence that Kinch acted reasonably in burning when it did and acting as it did to attemptto control the situation. An 9No. 32314-5-III Clinesmith, etal. v. Kinch Farms, Inc. appropriately instructedjury ofAdams County residents considered the case and determined that Kinch was not negligent. The delegation instruction soughtby the Neighbors was not necessary to this case. Thetrial court did not abuse its discretion in declining the proffered instruction. There was no error. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.

I CONCUR:

10No. 32314-5-111 FEARING, 1. (concurring)

- We are boundby statute. RCW4.24.040 imposes on the victim offire damagetheburden ofproving negligence by the defendant, even when the defendant intentionally sets a fire. The trial court committed no evidentiary error based on a negligence standard. Absentthe statute, the act ofintentionally setting a fire could qualify for strict liability or absolute liability as an abnormally dangerous activity. RESTA TEMENT (SECOND) OF TORTS 

### §§ 519 and 520 (1977). 

### Klein v. 

### Pyrodyne Corp., 117 Wn.2d 1, 6, 810 P.2d 917,817 P.2d 1359 (1991);

### Langan v. 

### Valicopters, Inc., 88 Wn.2d 855, 861-62, 567 P.2d 218 (1977). The setting ofa fire creates a danger ofgreat harm and, as illustrated by the facts ofthis case, therisk ofharm cannotbe eliminated by reasonable
care. Kinch Farms intentionally set a fire to increase crop yield orreduce expenses and thereby increase its income. Despite care in tending tothe fire, the fire escaped and burned 5,000 acres ofneighbors' farmland. Through no conduct oftheirown, plaintiff farmers sustained tens ofthousands ofdollars in damages. The outcome ofthis case is unfair.
I CONCUR: