FILED 


SEPTEMBER 10, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


CLINE SMITH CATTLE COMPANY, ) 

INC., a Washington corporation; CALF ) No. 32314-5-III 

CREEK CATTLE COMPANY, INC., a ) 

Washington corporation; J. W. HARDER ) 

LIVESTOCK, INC., a Washington ) 

corporation, a J.J.H. LIVESTOCK, INC., ) 

a Washington corporation partners of ) UNPUBLISHED OPINION 

HARDER RANCHES, a Washington ) 

general partnership; HERBERT and ) 

DOROTHY KENT, husband and wife; ) 

GLADYS KENT, TRUSTEE OF ) 

ALFRED R. KENT F AMIL Y TRUST; ) 

ALFRED J. OCHOA a married man ) 

dealing as his separate property; and BAR ) 

U RANCH CO., a Washington ) 

corporation, ) 

) 

Appellants, ) 

) 

v. ) 

) 

KINCH FARMS, INC., ) 

a Washington corporation, ) 

) 

Respondent. ) 

KORSMO, J. - Appellants' property was damaged after a fire intentionally set by 

respondent Kinch Farms (Kinch) flared back to life and spread to adjacent properties. A 

jury, however, rejected their claims for damages. We affirm. 
No. 32314-5-III 


Clinesmith, et al. v. Kinch Farms, Inc. 


FACTS 

The fire in question was set on August 10, 2009, when Kinch conducted a 

controlled bum of one of its 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 of Ecology (DOE) that was 

good on specific "bum days." Kinch confirmed that August 10th was a "bum day" 

before starting the fire. 

Prior to setting the fire, Kinch created a fire break around Circle 6 by eliminating 

combustible material. It also stationed a tractor and disc for creating fire breaks and a 

1,000 gallon capacity water truck near the operation. Despite these precautions, the fire 

spread to one of Kinch's adjoining circles and onto a neighbor's field at 4:00 p.m. that 

day. Kinch called the fire department and then used their own equipment to contain the 

fire. By the time the fire department arrived, the fire was mostly out. Around 7:00 p.m. 

that night, the fire chief determined that the fire was sufficiently extinguished. 

After the 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 continued to watch the bum area from his house throughout the 

night. The next morning, Mr. Miller and Rod Kinch both individually drove by the bum 

area to be sure there was nothing of concern; the manager of one of the neighboring 

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No. 32314-5-III 

Clinesmith, et ai. v. Kinch Farms, Inc. 

properties also inspected the burn area. The fire chief returned to the burn area. He saw 

nothing of concern 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 had rekindled on the neighboring field. After 

contacting the fire department, Mr. Miller and Joe Kinch returned to 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 of the 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 to jury trial before 

the Honorable David Frazier. Various motions were argued prior to trial; the Neighbors 

attempted to exclude evidence flowing from the burn permit that they believed would 

misinform the jury of the legal standards of duty. In particular, they requested exclusion 

of the following: 

Argument and testimony 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 of Proceedings (RP) (Sept. 26, 2013) at 23. 

The trial court denied the motion, but noted that "argument to the effect that it 

absolves or relieves the defendant of responsibility" would not be proper. RP (Sept. 26, 

2013) at 23. The Neighbors then sought to exclude: 

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No. 32314-5-III 

Clinesmith, et al. v. Kinch Farms, Inc. 

Argument and testimony that any actions of the volunteer fire 


department relieve Defendant of responsibility for any "hazardous, 


dangerous or negligent 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 of whether Kinch exercised 

reasonable care. The trial court declined to rule on whether to exclude testimony and 

argument about any shift in duty or fault as a result of the fire department's activities. 

In accordance with these rulings, testimony concerning the DOE permit and the 

fire department's involvement were admitted at trial. Without objection, Kinch used 

words like "jurisdiction," "authority," and "delegate," when questioning its witnesses. 

For instance, the fire chief was 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 "the fire chief now pretty much has control of their ground, and it's his call on 

what needs to be done with the situation at hand." Concerning the DOE permit, Fire 

Chief Brian Dainty testified that "DOE is God," explaining that when the DOE authorizes 

a "burn day," farmers take advantage of it because "[t]hey're the experts." 

Although not objecting to the testimony, the Neighbors then requested a curative 

jury instruction based on 6 Washington Practice: Washington Pattern Jury Instructions: 

Civil 12.09, at 161 (6th ed. 2012) (WPI) (Nondelegable Duties): 

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No. 32314-5-III 

Clinesmith, et al. v. Kinch Farms, Inc. 

Defendant is not relieved of its duty to kindle and care for a controlled burn 

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 other person's property by delegating or seeking to 

delegate that duty to another person 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. The jury was given standard instructions 

on negligence. The jury 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 that request, 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 and Motions 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 of the fire department, leading 

to Kinch misusing the evidence. Because the trial court correctly determined that the 

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No. 32314-5-III 


Clinesmith, et al. 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 currently provides: 

Except as provided in RCW 76.04.760, if any person shall for any lawful 

purpose kindle 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 of it to prevent it from 

spreading and doing damage to other persons' property, as a prudent and 

careful person would do, and if he 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 of such 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 own property to 

spread to the property of another." The jury was instructed in the language of both of 

these statutes. CP at 726. The jury, accordingly, also was instructed on the requirements 

of a negligence action, including the duty of ordinary care. CP at 720, 722-23. 

Evidence is relevant ifit has "any tendency to make the existence of any fact that 

is of consequence to the determination of the action more probable or less probable than 

it would be without the evidence." ER 401. Subject to limitations imposed by other rules 

or constitutional principles, relevant evidence is admissible. ER 402. A trial judge's 

I LAWS OF 1877, § 3, at 300. 

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No. 32314-5-II1 

Clinesmith, et al. v. Kinch Farms, Inc. 

decision to admit or exclude evidence under these provisions is reviewed for abuse of 

discretion. Diaz v. 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. 

Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). 

The Neighbors sought to 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 of Kinch's behaviorit had checked with DOE before burning and it remained and watched the fire scene after 

the fire department had departed. This information allowed the jury to assess the 

reasonableness of Kinch'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 of the 

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 cannot pursue any claim of error in this court. RAP 2.5(a). Second, since the 

court denied the motions in limine, none of the 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 of that reservation. 

Finally, the jury was not instructed on any legal concepts such as delegation of duty that 

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No. 32314-5-111 

Clinesmith, et al. 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 the jury to 

possibly misuse the testimony. 

We also note that defense counsel did not exploit the failed motions in limine in 

closing argument.2 Accordingly, there was no danger that the jury would misapply the 

now challenged testimony and consider a legal theory other than negligence. 

The trial court did not err in its rulings in limine and the Neighbors have not 

preserved any claim of error related to the testimony they now seek to challenge. 

Proposed Instruction 

The Neighbors also contend that the trial court erred in rejecting their proposed 

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 

if they 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 

argued that 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) at 42. Plaintiffs counsel did not object, but in rebuttal nicely addressed the issue 

by pointing out that Kinch could only escape responsibility if the fire department's 

actions caused the subsequent losses. Id. at 46-47. Since the jury decided this case on the 

basis of negligence, not proximate cause, any error in making this argument was 

harmless. CP at 766-67. 

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No. 32314-5-III 

Clinesmith, et al. v. Kinch Farms, Inc. 

respective theories of the case. State v. Dana, 73 Wn.2d 533, 536-537,439 P.2d 403 

(1968). The trial court also is granted broad discretion in determining the wording and 

number ofjury instructions. Petersen v. State, 100 Wn.2d 421, 440, 671 P .2d 230 

(1983). 

The Neighbors do not contend that the court's instructions were misleading or 

otherwise incorrect. Instead, they contend that their requested instruction was necessary 

to cure the testimony of Kinch's witnesses. We disagree. The court did not instruct, and 

Kinch did not attempt to argue, that responsibility for the fire was somehow delegated to 

the fire department. The testimony acknowledged the simple truth of the situationwhen the fire department was on the scene, it was in charge of the fire. There was never 

any claim, by testimony or argument or jury instruction, that the department's presence 

on the scene itself absolved Kinch of responsibility for the fire. And, if there had been, 

the solution was for the Neighbors to challenge the inappropriate testimony or argument 

in order to give the trial judge the immediate opportunity to correct any errors. 

Rather, this case was tried according to the dictates of our statutory scheme. Was 

Kinch negligent in burning when it did and with the safety precautions it exercised, or did 

it act reasonably? The evidence allowed the jury to find for either side. Given that the 

fire escaped and did damage, a jury verdict 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 attempt to control the situation. An 

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No. 32314-5-III 


Clinesmith, et al. v. Kinch Farms, Inc. 


appropriately instructed jury of Adams County residents considered the case and 

determined that Kinch was not negligent. The delegation instruction sought by the 

Neighbors was not necessary to this case. 

The trial 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 record pursuant to 

RCW 2.06.040. 

I CONCUR: 


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No. 32314-5-111 

FEARING, 1. (concurring) - We are bound by statute. RCW 4.24.040 imposes on 

the victim of fire damage the burden 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. 

Absent the statute, the act of intentionally setting a fire could qualify for strict 

liability or absolute liability as an abnormally dangerous activity. RESTATEMENT 

(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 of a fire creates a danger of great harm and, as 

illustrated by the facts ofthis case, the risk of harm cannot be eliminated by reasonable 

care. 

Kinch Farms intentionally set a fire to increase crop yield or reduce expenses and 

thereby increase its income. Despite care in tending to the fire, the fire escaped and 

burned 5,000 acres of neighbors' farmland. Through no conduct oftheir own, plaintiff 

farmers sustained tens ofthousands of dollars in damages. The outcome of this case is 

unfair. 

I CONCUR: