Koos v. Roth

Oregon Supreme Court · 1982 · Torts

TortsStrict LiabilityAbnormally Dangerous ActivitiesTrespassstrict liabilityabnormally dangerous activityultrahazardousfield burning

Facts

Defendant commercially produced grass seed on 55 leased acres and, after harvest, burned the field by setting fire to dry straw after plowing a protective strip and using a crew with mobile water tanks. While the burn was underway, plaintiffs' adjoining field caught fire and suffered stipulated damage of $8,017 to real and personal property. No witness saw the ignition on plaintiffs' land, but the witnesses agreed that a whirlwind probably carried burning material from defendant's field, and the fire also spread to other nearby property. There was no evidence of negligence, and plaintiffs pursued only strict liability theories on appeal.

Issue

Whether a farmer who intentionally conducts field burning is strictly liable for damage when the fire spreads onto a neighbor's property, even without proof of negligence. More specifically, the question was whether agricultural field burning is an abnormally dangerous activity under Oregon strict liability doctrine.

Rule

An activity is subject to strict liability when it creates an abnormal hazard, meaning a risk of serious harm of exceptional magnitude or probability that cannot be eliminated by the exercise of utmost or reasonable care. The assessment focuses on the magnitude and probability of harm despite precautions; location may be relevant, but appropriateness of location alone does not defeat strict liability, and an activity escapes strict liability only if it is a common usage in the sense that nearly everyone routinely does it or expects it done for them. Legislative or administrative safety regulation can reinforce that an activity is exceptionally dangerous, but authorization or permits do not by themselves preclude strict liability for nonnegligent harm.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Salem, Oregon, Darren Pike operates a specialty seed farm. After harvest, he intentionally burns 70 acres of dry residue using plowed firebreaks, water trucks, and a trained crew, but a sudden vortex carries burning debris onto Nina Alvarez’s adjoining orchard and destroys irrigation lines and equipment; no evidence suggests Darren was negligent.

Is Darren most likely strictly liable for Nina’s property damage?

Explanation. Yes. The majority held that strict liability applies when an activity poses a risk of serious harm of exceptional magnitude or probability that cannot be eliminated by utmost or reasonable care. Large-scale field burning over a broad area open to the winds fits that description, even when the burner used substantial precautions and was not negligent. The resulting spread onto neighboring land makes the burner liable for the damage.