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Minto v. Sprague6/16/2005
977) describes the liability for such activities as follows:
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
When determining whether an activity is ultrahazardous, courts consider whether: (1) the activity poses a high degree of risk of harm to a person, land, or chattels; (2) it is likely that the resulting harm will be great; (3) the risk cannot be eliminated by exercising reasonable care; (4) the activity is not a matter of common usage; (5) the activity is inappropriate where it occurred; and (6) the activity's value to the community is outweighed by the danger. King v. United States, 53 F. Supp. 2d 1056 (D. Colo. 1999), rev'd on other grounds, 301 F.3d 1270 (10th Cir. 2002); see Imperial Distrib. Servs., Inc. v. Forrest, 741 P.2d 1251 (Colo. 1987)(courts may instruct that defendant owed duty of highest standard of care only when defendant engaged in an activity that poses a high risk of injury to others); W. Stock Ctr., Inc. v. Sevit, Inc., 195 Colo. 372, 379, 578 P.2d 1045, 1050 (Colo. 1978)("blasting with dynamite and impounding water have been held to be ultrahazardous activities").
These considerations all focus on the "activity" being conducted. It is plausible that the General Assembly intended that the statute treat the activity of setting fire to woods or prairie as an ultrahazardous activity. Indeed, setting fire to woods or prairie can pose a high degree of risk and can cause great harm, and a great deal of care may be required to eliminate the risk.
Here, there is no evidence that defendant's use of the bulldozer posed a high degree of risk of fire or that defendant was engaged in the act of setting fire or working with fire. Nonetheless, plaintiffs argue that the plain meaning of "sets fire to" reflects the General Assembly's intention to create strict liability even when an activity poses no foreseeable risk of fire but results in a fire in woods or on a prairie. We conclude that plaintiffs' argument is contrary to the general principles of strict liability.
3. Section 13-21-105(2)
Plaintiffs also contend that § 13-21-105(2)(a), C.R.S. 2004, which became law in 2002, shows "the current political climate to impose strict liability upon fire starters." We conclude that evidence tending to show the current political climate is not probative of the General Assembly's intent when it drafted subsection (1).
In 2002, the General Assembly amended § 13-21-105. The amendment designated the pre-existing language as subsection (1), but made no changes in that language, which has remained the same since 1973. The only substantive change made by the General Assembly in 2002 was to add subsection (2).
Section 13-21-105(2)(a) states that when the governor declares a state of emergency or disaster due to drought, and a "person knowingly sets fire to any woods or prairie," "such person may be held liable for treble damages to any injured party."
Plaintiffs do not refer to floor debate regarding the House bill and special session bill that resulted in enactment of subsection (2). Instead, they refer to floor debate regarding a regular session bill that died, and they argue that the debate regarding the choice between the word "knowingly" and the word "recklessly" confirms that the phrase "sets fire to" includes any act and that the phrase "knowingly sets fire to" includes negligent and int
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