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June 23, 1958

Arthur A. ARNHOLD et al., Plaintiffs,
UNITED STATES of America et al., Defendants. RAYONIER INCORPORATED, a Delaware corporation, Plaintiff, v. UNITED STATES of America, Defendant

The opinion of the court was delivered by: BOLDT

In cause #3533 Rayonier Incorporated seeks recovery of damages from the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680, for loss of standing timber and other property allegedly caused by negligence of employees of the United States Forest Service in failing to prevent, control and extinguish a forest fire, ultimately of disaster proportions, which occurred in August and September of 1951 on the Olympic Peninsula, Washington and is known as the Forks fire from the name of a town in the vicinity. In cause #2956 plaintiffs Arnhold and several other owners of residential and other property damaged in the fire, on identical allegations of negligence, seek similar recovery against the United States and join as additional defendants the Port Angeles and Western Railroad Company and Fibreboard Products, Inc., alleging negligence of each and both causing or contributing to the damage complained of and asserting jurisdiction of the claims against the additional defendants under 28 U.S.C. § 1332 by diversity of citizenship. The two entirely independent actions were consolidated for hearing on motions to dismiss, pretrial conferences and for trial of liability issues.

On motion of the United States, this court, relying on language in the Dalehite v. United States opinion, 1953, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427, dismissed both actions on the ground that the complaints failed to state a claim against the United States upon which relief could be granted. The Court of Appeals affirmed, Rayonier Inc., v. United States, 9 Cir., 1955, 225 F.2d 642. The Supreme Court reversed, 1957, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d 354, vacating the judgment of this court and that of the Court of Appeals. The cases were remanded to this court with instructions (352 U.S. at page 321, 77 S. Ct. at page 377) '* * * to determine [the] sufficiency (of the allegations of the complaints) * * * to impose liability on a private person under the laws of the State of Washington.'

 Further hearing of the motions to dismiss on the allegations of the complaints was not sought. By several pretrial conferences the many issues in both cases were framed and clarified in pretrial orders superseding all former pleadings. At the instance of counsel for all parties and in their company the court made an extensive two-day tour of the entire area of the fire visiting and inspecting every place of particular significance later referred to in the evidence. Damages have been stipulated at a total of $ 300,266.31 for plaintiffs Arnhold, et al, and at $ 895,000 for Rayonier Incorporated. Trial of all liability issues in both cases has been completed. The facts pertaining to liability as they now appear, either by agreement of the parties in the pretrial orders or from findings on the evidence produced at the trial, are fully stated in Findings of Fact entered by the court with the filing of this opinion. Such Findings, constituting the controlling statement of the court's determination of facts, *fn1" are detailed and lengthy. Only the salient facts found will be mentioned herein.

 In 1937 the common carrier Port Angeles and Western Railroad Company, hereafter called PAW, entered into a conditional sale contract for the purchase from the United States of a railroad and railroad right of way running generally in an east-west direction between the towns of Forks and Port Angeles and passing through section 30. Under the terms of the contract the vendor United States, during the executory term of the contract which includes the period involved in this litigation, retained title to the railroad property including the right of way. Right of inspection thereof was reserved to the United States. Forfeiture at the option of vendor was provided for in the event of vendee's default in any of the conditions of the contract. One such condition was compliance by vendee with all state and federal fire laws and regulations. PAW, now in bankruptcy reorganization, was in financial difficulties in August of 1951 and had been for some years prior thereto. For that reason portions of its right of way had been permitted to fall into substandard condition in that weeds, grass and brush of various sizes and types grew near and between the tracks, about 25% of the track ties were rotten, and discarded rotten ties had been left on the right of way within a few feet of passing trains.

 The spring and summer of 1951 were among the driest on record in the Soleduc District. Due to below normal rainfall and lower than normal relative humidity burning conditions in August, 1951 were severe. In a forest closure notice published by the Forest Service for the period July 2 through September 15, 1951 the Soleduc River area was described as a region of extra fire hazard.

 Midday on August 6, 1951 heated metal or sparks from a PAW locomotive, eastbound with a train load of logs, ignited a series of small spot fires along the PAW right of way. It is not alleged by plaintiffs nor is there evidence showing that the release from the engine of fire igniting material was due to negligence. One of the fires originally started at a point on the right of way in section 30 almost due south of a settlement known as Heckleville. This particular spot fire eventually grew into the conflagration which gives rise to this litigation and will be referred to as the Heckleville spot fire. All of the other August 6 fires were extinguished that day before they caused any material damage.

 At about 12:30 p.m. on August 6 the Forest Service lookout at North Point on a high peak north of Heckleville reported to Snider Ranger Station of the Forest Service the sighting of smoke arising from a spot fire on government land in or near the PAW right of way in section 35, Township 30 North, Range 11 West, Willamette Meridian. Section 35 is immediately west of section 30 wherein the Heckleville fire started. To the scene of the fire reported at 12:30, district ranger Floe of the Forest Service promptly dispatched in a radio-equipped panel truck his entire immediately available fire suppression force, consisting of five men equipped with hand firefighting tools, under control of assistant district ranger Evans. At 1:00 p.m. the lookout reported the smoke of the Heckleville spot fire to Floe. Meanwhile the PAW train crew, aware of at least one of the fires burning on the right of way, had stopped at Fibreboard Camp #1 (about 2 miles east of Heckleville) intending to sidetrack its loaded train and return the locomotive, which carried firefighting hose and equipment, to the scene of the fires. However, when the crew attempted to back the train on to a siding it was discovered that a broken equalizer bar had so lodged itself against the wheels of the locomotive as to make reverse travel impossible.

 At about 1:30 p.m. Floe, having been informed by the PAW general manager of the inability of the PAW locomotive to reverse its course, was able to contact Evans by radio and advise him of the Heckleville fire. At that time Evans and the suppression crew were still in action on the first reported fire and about 2 miles distant along the right of way from the initial site of the Heckleville spot fire. At 2:10 p.m. Floe alerted State of Washington warden MacDonald of the adjacent Beaver state forestry district to stand by ready to send assistance. At 2:30 p.m. Evans and 3 men, having travelled about 5 miles by truck and foot and after wading the Soleduc River, arrived at the Heckleville spot fire and reported its dimensions to Floe who immediately requested assistance from MacDonald. By 3:00 p.m. the fire was spreading and spotting ahead of the main body of fire beyond control of the men and equipment at the scene. A Rayonier locomotive, previously requested by Floe, arrived at the fire at about 3:15 p.m. The state crew of 7 men and a Rayonier crew of 25 men all equipped with hand tools, arrived at about 4:00 p.m. By 5:00 p.m. 2 Fibreboard bulldozers, a PAW locomotive, 4 Rayonier hand pumps, and at least 15 additional men arrived at the scene. Floe personally was present at the fire some time between 4:00 and 7:00 p.m. No appreciable firefighting activities were conducted at the scene of the fire on August 6 after 5:00 p.m.

 The following morning, August 7, 1951, firefighting commenced under Floe's direction between 6:00 and 7:00 a.m., with the objective of restricting and suppressing the fire within the 60 acres then involved. At about 2:30 p.m. a stiff breeze arose which, in spite of control and confinement measures in effect at the time, drove the fire out of control over fire lines and spread it into an area of about 1,600 acres of timberland generally south and east of Heckleville. The land in this area was owned by the government and by Fibreboard Products Inc. The blaze was largely brought under control within the 1,600-acre area by August 10, 1951.

 Some traces of fire continued to erupt in various parts of the affected area, particularly in two former logging landings referred to as 'L-1' and 'L-2', until the night of September 19-20, 1951. During that night a wind of extremely high force for that time of year, under conditions of high temperature and low humidity unusual for nighttime, fanned hidden embers into a flame which crossed or jumped the fire lines and quickly spread to inflammable material to the west of the 1,600-acre area. From there it moved rapidly and at times by great jumps for a distance of 20 miles in a southwesterly direction to and within the town of Forks. All of the damage to plaintiffs' property for which recovery is sought in these actions occurred on and after September 20 following escape of the fire from the 1,600-acre area.

 Several statutes and many decisions have been cited as stating or indicating Washington state law concerning the liability of private persons for damage from fire both in and out of forest lands. In these authorities the following principles appear:

 The owner or occupant of land in or near a forest area who with due care starts fire on such land for a lawful purpose, such as land clearing, must exercise ordinary and reasonable care to prevent spread of the fire to the damage of others. Failure to perform such duty is negligence rendering the party guilty thereof liable for all damage proximately resulting therefrom. If, despite the exercise of reasonable care by the owner or occupant of land, a fire not negligently started by him escapes his premises, he will not be liable for subsequent damage caused by the fire. Sandberg v. Cavanaugh Timber Co., 1917, 95 Wash. 556, 164 P. 200; Galbraith v. Wheeler-Osgood Co., 1923, 123 Wash. 229, 212 P. 174; Lehman v. Maryott & Spencer Logging Co., 1919, 108 Wash. 319, 184 P. 323; Burnett v. Newcomb, 1923, 126 Wash. 192, 217 P. 1017; Mensik v. Cascade Timber Co., 1927, 144 Wash. 528, 258 P. 323; Criscola v. Guglielmelli, 1957, 50 Wash.2d 29, 308 P.2d 239.

 The owner or occupant of forest land who, regardless of purpose, negligently starts a fire on such land which, with or without his further negligence, spreads to damage others is liable for all damage proximately caused by such fire. Ulrich v. Stephens, 1908, 48 Wash. 199, 93 P. 206; Jordan v. Welch, 1911, 61 Wash. 569, 112 P. 656; Seibly v. City of Sunnyside, 1934, 178 Wash. 632, 35 P.2d 56; (see R.C.W. 76.04.220 and Spokane International Railway Co. v. United States, 9 Cir., 1934, 72 F.2d 440 attaching civil liability to violation of standard of care established by criminal statute.)

 An owner or occupant of forest land with knowledge of a fire burning on such land, even though started by strangers, must exercise ordinary and reasonable care to prevent spread of the fire to the damage of others. Failure to do so is negligence rendering the landowner or occupant liable for all damage proximately resulting therefrom. Sandberg v. Cavanaugh Timber Co., supra; Jordan v. Spokane, Portland & Seattle R. Co., 1920, 109 Wash. 476, 186 P. 875; Galbraith v. Wheeler-Osgood Co., supra; and see R.C.W. 76.04.380.

 All damages of a kind reasonably foreseeable as a consequence of the failure to exercise reasonable care for the restraint and suppression of a fire may be recovered against the negligent party. To constitute an intervening independent cause as a break in the chain of proximate causation precluding recovery against a negligent defendant, Acts of God or negligence of others must be the sole proximate cause of the damage complained of. The burden of going forward with evidence sufficient to sustain a finding of intervening independent proximate cause rests on the party asserting it. If negligence of a defendant in starting or in failing to confine or suppress a fire combines and concurs with the negligence of others or with Acts of God to proximately cause damage to third parties, such defendant is liable for the whole of the damage so caused. Stephens v. Mutual Lumber Co., 1918, 103 Wash. 1, 173 P. 1031; Lehman v. Maryott & Spencer Logging Co., supra; Galbraith v. Wheeler-Osgood Co., supra; Burnett v. Newcomb, supra; Walters v. Mason County Logging Co., 1926, 139 Wash. 265, 246 P. 749; Mensik v. Cascade Timber Co., supra; Seibly v. City of Sunnyside, supra; Tope v. King County, 1937, 189 Wash. 463, 65 P.2d 1283; Teter v. Olympia Lodge, 1938, 195 Wash. 185, 80 P.2d 547; Blessing v. Camas Prairie Railroad Co., 1940, 3 Wash.2d 266, 267, 100 P.2d 416; Berglund v. Spokane County, 1940, 4 Wash.2d 309, 103 P.2d 355; Sitarek v. Montgomery, 1949, 32 Wash.2d 794, 203 P.2d 1062; Theurer v. Condon, 1949, 34 Wash.2d 448, 209 P.2d 311; McLeod v. Grant County School District, 1953, 42 Wash.2d 316, 255 P.2d 360.

 One who by contract assumes a preexisting duty of another to provide fire protection and furnish firefighting service is liable to third parties relying on prudent performance of such duties for damage proximately caused by failure to exercise reasonable care in the performance of the assumed duties. In such situation a disclaimer of liability between nongovernmental contracting parties will not bar recovery by the third party for damage resulting from negligent performance of the assumed duties. Sheridan v. Aetna Casualty & Surety Co., 1940, 3 Wash.2d 423, 100 P.2d 1024; Western Auto Supply Agency of Los Angeles v. Phelan, 9 Cir., 1939, 104 F.2d 85.

 In weighing the evidence pertaining to the charges of negligence against all defendants, well settled rules of law recognized in Washington have been kept in mind. Applicability of res ipsa loquitur is neither urged by plaintiffs nor authorized by any Washington decision. The burden of proof rests on plaintiffs to establish by a fair preponderance of the evidence both negligence as charged and proximate causal relationship of such negligence to claimed damage. Substantial evidence and not a mere scintilla is required. Carley v. Allen, 1948, 31 Wash.2d 730, 198 P.2d 827; Wilson v. Northern Pacific Railway Co., 1954, 44 Wash.2d 122, 265 P.2d 815; Evans v. Yakima Valley Transportation Co., 1952, 39 Wash.2d 841, 239 P.2d 336.

 Under the foregoing general principles and other rules of Washington law to be particularly mentioned, the contentions of the parties as to liability of defendants in the consolidated cases will now be considered separately as to each defendant on the basis ...

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