                                                                        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 


CLINESMITH 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a Washington corporation partners of        )        UNPUBLISHED OPINION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 FAMIL 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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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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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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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 if it 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 behavior-

it 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

                                              7

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 situation-

when 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 of the 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: 





                                             10 

                                          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 of proving 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 of this 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 of their own, plaintiff

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

unfair.


I CONCUR:
