Hale, J.

Seventeen-year-old Carol J. House died in the flames of a gasoline explosion when her car encountered a pool of thousands of gallons of spilled gasoline. She was driving home from her after-school job in the early evening of November 22, 1967, along Capitol Lake Drive in Olympia; it was dark but dry; her car’s headlamps were burning. There was a slight impact with some object, a muffled explosion, and then searing flames from gasoline pouring out of an overturned trailer tank engulfed her car. The result of the explosion is clear, but the real causes of what happened will remain something of an eternal mystery.

Aaron L. Kuhlman had been a truck driver for nearly 11 years after he completed the 10th grade in high school and after he had worked at other jobs for a few years. He had been driving for Pacific Intermountain Express for about 4 months, usually the night shift out of the Texaco bulk plant in Tumwater. That evening of November 22nd, he was scheduled to drive a gasoline truck and trailer unit, fully *450loaded with gasoline, from Tumwater to Port Angeles. Before leaving the Texaco plant, he inspected the trailer, checking the lights, hitch, air hoses and tires. Finding nothing wrong, he then set out, driving the fully loaded truck tank and trailer tank, stopping briefly at the Trail’s End Cafe for a cup of coffee. It was just a few minutes after 6 p.m., and dark, but the roads were dry when he started the drive to deliver his cargo—3,800 gallons of gasoline in the truck tank and 4,800 gallons of gasoline in the trailer tank. With all vehicle and trailer running lights on, he drove the truck and trailer onto Interstate Highway 5, proceeded north on that freeway at about 50 miles per hour, he said, and took the offramp about 1 mile later to enter Highway 101 at the Capitol Lake interchange. Running downgrade on the offramp, he felt a jerk, looked into his left-hand mirror and then his right-hand mirror to see that the trailer lights were not in place. The trailer was still moving but leaning over hard, he observed, onto its right side. The trailer then came loose. Realizing that the tank trailer had disengaged from his tank truck, he stopped the truck without skidding its tires. He got out and ran back to see that the tank trailer had crashed through a chain-link highway fence and had come to rest upside down on Capitol Lake Drive below. He heard a sound, he said, “like somebody kicking an empty fifty-gallon drum and that is when the fire started.” The fire spread, he thought, about 100 feet down the road.

The trailer was owned by defendant Pacific Intermountain Express. It had traveled about 329,000 miles prior to November 22, 1967, and had been driven by Mr. Kuhlman without incident down the particular underpass above Capitol Lake Drive about 50 times. When the trailer landed upside down on Capitol Lake Drive, its lights were out, and it was unilluminated when Carol House’s car in one way or another ignited the spilled gasoline.

Carol House was burned to death in the flames. There was no evidence of impact on the vehicle she had driven, *451Kuhlman said, except that the left front headlight was broken.

Why the tank trailer disengaged and catapulted off the freeway down through a chain-link fence to land upside down on Capitol Lake Drive below remains a mystery. What caused it to separate from the truck towing it, despite many theories offered in explanation, is still an enigma. Various theories as to the facts and cause were advanced in the trial. Plaintiff sought to prove both negligence on the part of the driver and owner of the vehicle and to bring the proven circumstances within the res ipsa loquitur doctrine. Defendants sought to obviate all inferences of negligence and the circumstances leading to the application of res ipsa loquitur by showing due care in inspection, maintenance and operation. Plaintiff argued negligence per se and requested a directed verdict on liability. On appeal, plaintiff relied in part on RCW 46.44.070 and RCW 46.61.655,1 relating to the drawbar connecting trailer to truck, and provisions prohibiting a load from dropping, shifting, leaking or escaping from the vehicle.

The jury apparently found that defendants had met and overcome the charges of negligence. Defendants presented proof that both the truck, manufactured by Peterbilt, a division of Pacific Car and Foundry Company, and the tank and trailer, built by Fruehauf Company, had been constructed by experienced companies, and that the fifth wheel, connecting the two units and built by Silver Eagle *452Company, was the type of connecting unit used by 95 percent of the truck-trailer units. Defendants presented evidence that a most careful inspection would1 not have revealed the defects or fatigue in the metal connections between truck and trailer; that the trailer would not collapse unless both main springs failed; there was evidence that, when fully loaded, the tank could not touch the wheels of the tank trailer without breaking the springs because the maximum flexion of the springs was less than 1 inch. Defendants presented evidence that the drawbar was secure and firmly attached; that the tanks were built of aluminum to prevent sparks; and that, when fully loaded with 4,800 gallons of cargo, there would be 2 or 3 inches of space between the cargo and top of the tank; that two safety cables connected the two units; that the truck and trailer were regularly serviced and repaired, and records of this preserved and put in evidence; that the unit had been subject to Interstate Commerce Commission spot checks and conformed to ICC standards; and that, at the time of the accident, the unit had traveled less than one-third of the average service life of that kind of unit. There was evidence obtained at the site of the fire that both of the mainsprings above the tank trailer’s front wheels bad broken as a result of stress, not fatigue—from a kind of stress that could not be predicted by inspection—and finally that there was no negligence on the driver’s part.

Defendants also presented some evidence of contributory negligence on the basis that Carol House, driving on a 35-mile-per-hour road, passed another vehicle at about 45 miles per hour and although she slacked speed somewhat before the explosion, she was traveling at the time of the impact in excess of the 35-mile-per-hour limit. The trial court submitted both contributory negligence and negligence to the jury, declared the maximum speed limit on Capitol Lake Drive to be 35 miles per hour, and told the jury that, although violation of a positive statute' is negligence as a matter of law, it would not engender liability unless the violation proximately contributed to the injury. *453From a judgment entered upon a verdict for defendants, plaintiff appealed to the Court of Appeals which affirmed. 3 Wn. App. 231, 473 P.2d 445 (1970). We granted review (78 Wn.2d 991 (1970)), and reverse.

In the Court of Appeals, the principal claim of error was directed to the trial court’s refusal to give an instruction on res ipsa loquitur, and we think that claim of error well taken. Our reasons for ruling that an instruction on res ipsa loquitur should have been given and that an inference of negligence could have been drawn from the event are found, we believe, in our statements on the subject: ZeBarth v. Swedish Hosp. Medical Center, 81 Wn.2d 12, 499 P.2d 1 (1972); Miles v. St. Regis Paper Co., 77 Wn.2d 828, 467 P.2d 307 (1970); Douglas v. Bussabarger, 73 Wn.2d 476, 438 P.2d 829 (1968); Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967). We think, therefore, that plaintiff was entitled to an instruction permitting the jury to infer negligence from the occurrence.

But there exists here an even more impelling basis for liability in this case than its derivation by allowable inference of fact under the res ipsa loquitur doctrine, and that is the proposition of strict liability arising as a matter of law from all of the circumstances of the event.

Strict liability is not a novel concept; it is at least as old as Fletcher v. Rylands, L.R. 1 Ex. 265, 278 (1866), aff'd, House of Lords, 3 H.L. 330 (1868). In that famous case, where water impounded in a reservoir on defendant’s property escaped and damaged neighboring coal mines, the landowner who had impounded the water was held liable without proof of fault or negligence. Acknowledging a distinction between the natural and nonnatural use of land, and holding the maintenance of a reservoir to be a nonnatural use, the Court of Exchequer Chamber imposed a rule of strict liability on the landowner. The ratio decidendi included adoption of what is now called strict liability, and at page 278 announced, we think, principles which should be applied in the instant case:

*454[T]he person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

All of the justices in Fletcher v. Rylands, supra, did not draw a distinction between the natural and nonnatural use of land, but such a distinction would, we think, be irrelevant to the transportation of gasoline. The basic principles supporting the Fletcher doctrine, we think, control the transportation of gasoline as freight along the public highways the same as it does the impounding of waters and for largely the same reasons. See Prosser, Torts § 78 (4th ed. 1971).

In many respects, hauling gasoline as freight is no more unusual, but more dangerous, than collecting water. When gasoline is carried as cargo—as distinguished from fuel for the carrier vehicle—it takes on uniquely hazardous characteristics, as does water impounded in large quantities. Dangerous in itself, gasoline develops even greater potential for harm when carried as freight—extraordinary dangers deriving from sheer quantity, bulk and weight, which enormously multiply its hazardous properties. And the very hazards inhering from the size of the load, its bulk or quantity and its movement along the highways presents another reason for application of the Fletcher v. Rylands, supra, rule not present in the impounding of large quantities of water—the likely destruction of cogent evidence from which negligence or want of it may be proved or disproved. It is quite probable that the most important ingredients of proof will be lost in a gasoline explosion and fire. Gasoline is always dangerous whether kept in large or small quantities because of its volatility, inflammability and explosiveness. But when several thousand gallons of it are allowed to spill across a public highway—that is, if, while in transit as freight, it is not kept impounded—the hazards to third persons are so great as to be almost beyond calculation. As a consequence of its escape from impoundment *455and subsequent explosion and ignition, the evidence in a very high percentage of instances will be destroyed, and the reasons for and causes contributing to its escape will quite likely be lost in the searing flames and explosions.

That this is a sound case for the imposition of a rule of strict liability finds strong support in Professor Cornelius J. Peck’s analysis in Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225 (1971). Pointing out that strict liability was imposed at common law prior to Fletcher v. Rylands, supra, that study shows the application of a rule of strict liability in a number of instances, i.e., for harm done by trespassing animals; on a bona fide purchaser of stolen goods to their true owner; on a bailee for the misdelivery of bailed property regardless of his good faith or negligence; and on innkeepers and hotels at common law. But there are other examples of strict liability: The Supreme Court of Minnesota, for example, imposed liability without fault for damage to a dock inflicted by a ship moored there during a storm. Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).

The rule of strict liability rests not only upon the ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract justice, that is, upon the one of the two innocent parties whose acts instigated or made the harm possible, but it also rests on problems of proof:

One of these common features is that the person harmed would encounter a difficult problem of proof if some other standard of liability were applied. For example, the disasters caused by those who engage in abnormally dangerous or extra-hazardous activities frequently destroy all evidence of what in fact occurred, other than that the activity was being carried on. Certainly this is true with explosions of dynamite, large quantities of gasoline, or other explosives. It frequently is the case with falling aircraft. Tracing the course followed by gases or other poisons used by exterminators may be difficult if not impossible. The explosion of an atomic reactor may leave little evidence of the circumstances which caused it. Moreover, application of such a standard of liability to *456activities which are not matters of common experience is well-adapted to a jury’s limited ability to judge whether proper precautions were observed with such activities.

Problems of proof which might otherwise have been faced by shippers, bailors, or guests at hotels and inns certainly played a significant role in shaping the strict liabilities of carriers, bailees, and innkeepers. Problems of proof in suits against manufacturers for harm done by defective products became more severe as the composition and design of products and the techniques of manufacture became less and less matters of common experience; this was certainly a factor bringing about adoption of a strict liability standard.

(Footnote omitted.) C. Peck, Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225, 240 (1971).

See also, G. P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972), for an analysis of the judicial philosophy relating to .tort liability as affecting or affected by concepts of fault and negligence; and Comment, Liability Without Fault: Logic and Potential of a Developing Concept, 1970 Wis. L. Rev. 1201.

Thus, the reasons for applying a rule of strict liability obtain in this case. We have a situation where a highly flammable, volatile and explosive substance is being carried at a comparatively high rate of speed, in great and dangerous quantities as cargo upon the public highways, subject to all of the hazards of high-speed traffic, multiplied by the great dangers inherent in the volatile and explosive nature of the substance, and multiplied again by the quantity and size of the load. Then we have the added dangers of ignition and explosion generated when a load of this size, that is, about 5,000 gallons of gasoline, breaks its container and, cascading from it, spreads over the highway so as to release an invisible but highly volatile and explosive vapor above it.

Danger from great quantities of gasoline spilled upon the public highway is extreme and extraordinary, for any spark, flame or appreciable heat is likely to ignite it. The *457incandescent filaments from a broken automobile headlight, a spark from the heat of a tailpipe, a lighted cigarette in the hands of a driver or passenger, the hot coals from a smoker’s pipe or cigar, and the many hot and sparking spots and units of an automobile motor from exhaust to generator could readily ignite the vapor cloud gathered above a highway from 5,000 gallons of spilled gasoline. Any automobile passing through the vapors could readily have produced, the flames and explosions which killed the young woman in this case and without the provable intervening negligence of those who loaded and serviced the carrier and the driver who operated it. Even the most prudent and careful motorist, coming unexpectedly and without warning upon this gasoline pool and vapor, could have driven into it and ignited a holocaust without knowledge of the danger and without leaving a trace of what happened to set off the explosion and light the searing flames.

Stored in commercial quantities, gasoline has been recognized to be a substance of such dangerous characteristics that it invites a rule of strict liability—even where the hazard is contamination to underground water supply and not its more dangerous properties such as its explosiveness and flammability. See Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969). It is even more appropriate, therefore, to apply this principle to the more highly hazardous act of transporting it as freight upon the freeways and public thoroughfares.

Recently this court, while declining to apply strict liability in a particular case, did acknowledge the suitability of the rule in a proper case. In Pacific Northwest Bell Tel. Co. v. Port of Seattle, 80 Wn.2d 59, 491 P.2d 1037 (1971), we observed that strict liability had its beginning in Fletcher v. Rylands, supra, but said that it ought not be applied in a situation where a bursting water main, installed and maintained by the defendant Port of Seattle, damaged plaintiff telephone company’s underground wires. There the court divided—not on the basic justice of a rule of strict liability •in some cases—but in its application in a particular case to *458what on its face was a situation of comparatively minor hazards. Both majority and dissenting justices held, however, that the strict liability principles of Fletcher v. Rylands, supra, should be given effect in some cases; but the court divided on the question of whether underground water mains there constituted such a case.

The rule of strict liability, when applied to an abnormally dangerous activity, as stated in the Restatement (Second) of Torts § 519 (Tent. Draft No. 10, 1964), was adopted as the rule of decision in this state in Pacific Northwest Bell Tel. Co. v. Port of Seattle, supra at 64, 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 such harm.

(2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous.

As to what constitutes an abnormal activity, section 520 states:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;-

(b) Whether the gravity of the harm which may result from it is likely to be great;

(c) Whether the risk cannot be eliminated by the exercise of reasonable care;

(d) Whether the activity is not a matter of common usage;

(e) Whether the activity is inappropriate to the place where it is carried on; and

(f) The value of the activity to the community.

Applying these factors to this system, we do not find the activity to be abnormally dangerous. There has never been a break in the system before, absent an earthquake, and the pipe could have been expected to last many more years. It is a system commonly used for fire protection, and its. placement underground is, of course, appropriate. We do not find section 519 of the Restatement (Tent. *459Draft No. 10, 1964), or Rylands v. Fletcher, supra, applicable.

It should be noted from the above language that we rejected the application of strict liability in Pacific Northwest Bell Tel. Co. v. Port of Seattle, supra, solely because the installation of underground water mains by a municipality was not, under the circumstances shown, an abnormally dangerous activity. Had the activity been found abnormally dangerous, this court would have applied in that case the rule of strict liability.

Contrast, however, the quiet, relatively safe, routine procedure of installing and maintaining and using underground water mains as described in Pacific Northwest Bell Tel. Co. v. Port of Seattle, supra, with the activity of carrying gasoline as freight in quantities of thousands of gallons at freeway speeds along the public highway 'and even at lawful lesser speeds through cities and towns and on secondary roads in rural districts. In comparing the quiescence and the passive job of maintaining underground water mains with the extremely heightened activity of carrying nearly 5,000 gallons of gasoline by truck, one cannot escape the conclusion that hauling gasoline as cargo is undeniably an abnormally dangerous activity and on its face possesses all of the factors necessary for imposition of strict liability as set forth in the Restatement (Second) of Torts § 519 (Tent. Draft No. 10,1964), above.

Transporting gasoline as freight by truck along the public highways and streets is obviously an activity involving a high degree of risk; it is a risk of great harm and injury; it creates dangers that cannot be eliminated by the exercise of reasonable care. That gasoline cannot be practicably transported except upon the public highways does not decrease the abnormally high risk arising from its transportation. Nor will the exercise of due and reasonable care assure protection to the public from the disastrous consequences of concealed or latent mechanical or metallurgical defects in the carrier’s equipment, from the negligence of third parties, from latent defects in the highways and *460streets, and from all of the other hazards not generally disclosed or guarded against by reasonable care, prudence and foresight. Hauling gasoline in great quantities as freight, we think, is an activity that calls for the application of principles of strict liability.

The case is therefore reversed and remanded to the trial court for trial to the jury on the sole issue of damages.

Hamilton, C.J., Finley, Rosellini, and Hunter, JJ., and Ryan, J. Pro Tem., concur.

Rosellini, J.

(concurring)—I agree with the majority that the transporting of highly volatile and flammable substances upon the public highways in commercial quantities and for commercial purposes is an activity which carries with it such a great risk of harm to defenseless users of the highway, if it is not kept contained, that the common-law principles of strict liability should apply. In my opinion, a good reason to apply these principles, which is not mentioned in the majority opinion, is that the commercial transporter can spread the loss among his customers—who benefit from this1 extrahazardous use of the highways. Also, if the defect which caused the substance to escape was one of manufacture, the owner is in the best position to hold the manufacturer to account.

I think the opinion should make clear, however, that the owner of the vehicle will be held strictly liable only for damages caused when the flammable or explosive substance is allowed to escape without the apparent intervention of any outside force beyond the control of the manufacturer, the owner, or the operator of the vehicle hauling it. I do not think the majority means to suggest that if another vehicle, negligently driven, collided with the truck in question, the truck owner would be held liable for the damage. But where, as here, there was no outside force which caused the trailer to become detached from the truck, the rule of strict liability should apply.

It also is my opinion that the legislature has expressed an intent that owners and operators of vehicles carrying trail*461ers should be required to keep them under control, and that intent can be found in the statutes cited in the majority opinion. Thus the application of the common-law principles of strict liability is in accord with the manifest legislative view of the matter.

It also should be remarked, I think, that there was in this case no evidence that the alleged negligence of the deceased, in driving faster than the posted speed, was in any sense a proximate cause of the tragedy which befell her. There was no showing that, had she been proceeding at the legal rate of speed, she could have stopped her vehicle in time to avoid being enveloped in the flames or that the gasoline would not have ignited. Thus we are not confronted in this case with a question whether contributory negligence might under some circumstances be a defense to an action of this kind. It should be understood that the court does not pass upon that question at this time.

Hamilton, C.J., Finley, J., and Ryan, J. Pro Tern., concur with Rosellini, J.

Neill, J.

(dissenting)—The application of the doctrine of strict liability to the facts of this case is warranted, at least as the applicability is qualified by the concurring opinion of Justice Rosellini. However, to decide this case on that theory violates our established rules of appellate review. National Indem. Co. v. Smith-Gandy, Inc., 50 Wn.2d 124, 309 P.2d 742 (1957); State v. McDonald, 74 Wn.2d 474, 445 P.2d 345 (1968).

Plaintiff seeks money redress for the death of an exemplary young woman whose life was horribly terminated in a tragic accident. A jury absolved the defendants from culpability. Irrespective of our sympathy, that jury verdict must stand unless error was committed at the trial. On appeal, the Court of Appeals affirmed the verdict and judgment. Siegler v. Kuhlman, 3 Wn. App. 231, 473 P.2d 445 (1970). We granted review. 78 Wn.2d 991 (1970).

The only issue brought to this court by the appeal is the procedural effect of res ipsa loquitur. Before discussing that *462issue, I will address other portions of the majority and concurring opinions with which I am in disagreement.

The injection of the issue of the applicability and construction of RCW 46.44.070 is improper. The issue was not raised at trial, nor in the Court of Appeals. Following the granting of a petition for review, this court, sua sponte, requested counsel to submit supplemental briefs as to the statute. This is an appellate procedure to which I have previously expressed my dissent. Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 625, 465 P.2d 657 (1970).2 My disagreement with such judicial usurpation of an adversary function is even stronger here, where the meaning ascribed to the statute in focus depends upon an interpretation which that statute has not heretofore received. The majority opinion assumes that the language of RCW 46.44.070 requiring the trailer “connection . . . [to] be of sufficient strength to hold the weight of the towed vehicle on any grade where operated” applies to situations where the trailer breaks away to the side of the towing vehicle. Whether or not that interpretation should be applied to the statute is a question that should await a case where the issue is timely and properly presented.

Further, RCW 46.44.070, even as read by the majority, cannot be applied here without first assuming as fact that the connection was not secure. In this case that assumption is an inappropriate trespass on the jury’s function. As the majority notes, the question of whether the connection came loose because improperly secured is raised by circumstantial evidence. In fact, much of the trial was directed to expert testimony as to whether the trailer connection first came loose or whether the breaking of a supporting spring caused the ultimate separation of the connection. Thus any answer to that question is properly the subject of the jury’s *463consideration from the evidence and reasonable inference from the circumstantial evidence. Unless we are prepared to hold that the statute makes the operator of a truck and tractor rig a guarantor of the security of the connection under all circumstances, we cannot state that the answer is a matter of certitude.

The jury was instructed on contributory negligence. No exception was taken nor has error been assigned to the instruction. Yet, the concurring opinion, sua sponte, questions the giving of the instruction. It has been my understanding that an instruction to which error is not assigned becomes the law of the case. E.g., Kindelspire v. Lawrence, 44 Wn.2d 722, 270 P.2d 477 (1954); Ralston v. Vessey, 43 Wn.2d 76, 260 P.2d 324 (1953). I think it beyond the proper scope of appellate review to “try the case” for the parties.

I turn to the sole and only assignment of error presented to us: that the jury should have been given one of two res ipsa loquitur instructions proposed by plaintiff. The applicability of that doctrine to the facts of this case is not contested and is not in issue here. The question is the procedural effect to be given that doctrine in the case at hand. I disagree with the treatment that the majority has given to this question and adhere to the lead opinion in Zukowsky v. Brown, 79 Wn.2d 586, 488 P.2d 269 (1971). First, the majority opinion chooses to ignore, rather than grapple with, the serious' and difficult problems associated with the question of the procedural effect to be given res ipsa loquitur. See Zukowsky v. Brown, supra, and authorities therein cited. Also see Siegler v. Kuhlman, 3 Wn. App. 231, 473 P.2d 445 (1970). In consequence, the majority decision, as to this point, contributes nothing to the body of law, and yields only a sui generis result. Having refused to meet the problem, the majority cannot be read as either enhancing, diminishing, or altering answers arrived at in cases where the issue has been met.3

*464In addition, plaintiff’s proposed instructions on res ipsa were defective. Each proposed instruction contains language criticized in Clark v. Icicle Irrigation Dist., 72 Wn.2d 201, 203, 432 P.2d 541 (1967):

We particularly disagree with the statement that “the happening of the accident alone affords reasonable evidence . . . that the accident arose from the want of reasonable care.” We have been at some pains to make it clear that the happening does not afford “reasonable evidence”; that it does no more than permit the jury to infer, •though it is not required to so infer, that the defendant or its agents were at some point negligent.

See recent discussion in Pederson v. Dumouchel, [72 Wn.2d 73], 431 P.2d 973 (1967).

Plaintiff’s first assignment of error is the trial court’s failure to give a requested instruction stating:

You are instructed that when a thing which causes an injury to another is shown to be under the management and control of the person charged with negligence in operation or maintenance of such thing, or in the failure to keep it in a reasonably safe condition, and if it is shown that an accident happened, which in the ordinary course of things, does not happen if those in charge of the management and maintenance of thing exercised reasonable care, then the happening of the accident alone affords reasonable evidence in the absence of explanation by the person charged with negligence that the accident arose from want of reasonable care on the part of such persons.

(Italics mine.)

Plaintiff’s second, and only other, assignment of error is the failure to give an instruction stating:

You are instructed that when an object which causes an injury to another is shown to be under the management and control of a person charged with negligence in the operation of such thing, or in the failure to keep it in a reasonably safe condition and if it is shown that the incident happened which in the ordinary course of things does not happen, if those in charge of this management and control exercise reasonable care, then the happening of said occurrence affords reasonable evidence, in the *465absence of an explanation by the person charged with negligence, that the occurrence arose from the want of reasonable care on the part of such person.

(Italics mine.)

Thus plaintiff’s proposed res ipsa instructions were defective by including the “affords reasonable evidence” language criticized in Clark 4 A trial court need not give an erroneous instruction. State v. Wilson, 26 Wn.2d 468, 174 P.2d 553 (1946).

I would affirm the trial court and the Court of Appeals.

Stafford, J., concurs with Neill, J.

Petition for rehearing denied January 4, 1973.

Dolliver, J.

Plaintiff Mark Brown, while attempting to light an oil stove on December 31, 1978, unwittingly ignited natural gas which was leaking from a damaged gas line several blocks away. The natural gas, unable to permeate the frozen ground, traveled laterally entering the drain field which serviced Brown's residence. The leak allegedly was caused 7 years earlier when Cable Way, Inc. (Cable Way), while laying underground telephone cable for Pacific Northwest Bell (PNB), damaged a 2-inch gas transmission line owned by Washington Water Power Company (WWP). The subsequent explosion seriously injured Brown and destroyed the residence he rented from New Meadows Holding Company (New Meadows).

Plaintiff New Meadows sued WWP, PNB, and Cable Way. WWP answered and sought indemnity by cross claim from PNB and Cable Way. PNB brought separate summary judgment motions for dismissal against New Meadows and WWP asserting the claim and cross claim were barred by the statutes of limitation in RCW 4.16.300-.320. New Meadows failed to appear and did not contest the motion. WWP appeared and resisted the motion. Both motions for dismissal were granted. New Meadows and WWP appealed.

Subsequently, Brown and New Meadows sued WWP alleging liability based upon negligence and strict liability. They then filed a motion for summary judgment against WWP on the issue of strict liability. This motion was granted.

Court of Appeals, Division Three, granted discretionary *498review of the summary judgment order holding WWP strictly liable. This case and the appeals of New Meadows and WWP from the orders dismissing their actions against PNB were placed on a parallel perfection schedule and decided in a single opinion.

In New Meadows Holding Co. v. Washington Water Power Co., 34 Wn. App. 25, 659 P.2d 1113 (1983), Division Three held RCW 4.16.300-.320 did not apply to claims for damages to adjacent property and therefore reversed PNB's summary judgment on WWP's cross claim. The court, however, affirmed PNB's summary judgment against New Meadows, finding its failure to contest the motion amounted to waiver. Additionally, the court held the transmission of natural gas through underground lines was not an abnormally dangerous activity. Therefore, the summary judgment against WWP on the issue of strict liability was reversed. Plaintiffs' petition for discretionary review was granted.

I

Initially, we must determine whether the failure of New Meadows to contest PNB's motion for summary judgment waived its right to appeal. Failure to raise an issue before the trial court generally precludes a party from raising it on appeal. Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). This rule affords the trial court an opportunity to rule correctly upon a matter before it can be presented on appeal. Lake Air, Inc. v. Duffy, 42 Wn.2d 478, 482, 256 P.2d 301 (1953). However, this rule does not apply when the question raised affects the right to maintain the action. Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 621, 465 P.2d 657 (1970).

Since to deem New Meadows' failure to appear as a waiver affects its right to maintain the action, New Meadows' claim falls squarely under the exception to the general rule. Moreover, the trial court was not deprived of an opportunity to rule on the applicability of RCW 4.16.300-.320 to this case. PNB's motions for summary judgment, *499based on these statutory provisions, were adequately briefed and argued by PNB and WWP. New Meadows and WWP had identical interests. Thus, New Meadows' argument was not raised for the first time on appeal. We reverse the lower court's summary judgment dismissal of New Meadows' claim.

II

Next, at issue is whether New Meadows' claim and WWP's cross claim against PNB are barred by RCW 4.16-.300-320. RCW 4.16.300-.320 apply to all claims or causes of action arising from construction, alteration, or repair of any improvement upon real property. RCW 4.16.310 states such claims

shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction . . . Any cause of action which has not accrued within six years . . . shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues.

The Court of Appeals, relying on Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 89 Wn.2d 72, 569 P.2d 1141 (1977), held the statute did not apply to claims for damages to adjacent property. We disagree. Oja held, under the 3-year statute of limitation in RCW 4.16.080(1), the discovery rule determines when a cause of action accrues in cases involving damage to real property arising out of construction on adjacent property.

This holding has no impact on the absolute limitation on actions defined in RCW 4.16.310. Gazija v. Nicholas Jems Co., 86 Wn.2d 215, 222 n.2, 543 P.2d 338 (1975); Hudesman v. Meriwether Leachman Assocs., Inc., 35 Wn. App. 318, 320-23, 666 P.2d 937 (1983). This statute begins to run upon substantial completion of a project, not upon the accrual of a claim. In fact, the statute runs against the accrual of any claim arising from the project. Consequently, for a claim to be heard, it must accrue within 6 *500years. Additionally, RCW 4.16.310 applies to all claims of causes of action arising from the activities covered. The focus is upon the cause of the damage, not its location. We conclude, therefore, the statute applies equally to claims arising from adjacent property.

The proviso of RCW 4.16.310, however, which prohibits an owner, tenant, or other person in possession and control of the improvement from asserting the limitation as a defense, removes PNB from the terms of the statute. PNB, as owner of the telephone cable, falls within the proviso. The claims of New Meadows and WWP are not barred by RCW 4.16.300-.320.

Ill

Washington, as well as all other jurisdictions in the United States, applies a negligence standard to the underground piping of gas. See Richey & Gilbert Co. v. Northwestern Natural Gas Corp., 16 Wn.2d 631, 134 P.2d 444 (1943); Senske v. Washington Gas & Elec. Co., 165 Wash. 1, 4 P.2d 523 (1931); Annot., Liability of Gas Company for Personal Injury or Property Damage Caused by Gas Escaping From Mains in Street, 96 A.L.R.2d 1007 (1964 & Supp. 1983). Plaintiffs urge us to reexamine this doctrine and adopt the rule that the transmission of natural gas through underground lines is an abnormally dangerous activity upon which strict liability should be imposed.

Strict liability is imposed when the conditions of Restatement (Second) of Torts §§ 519, 520 (1977) are met. Pacific Northwest Bell Tel. Co. v. Port of Seattle, 80 Wn.2d 59, 64, 491 P.2d 1037 (1971) (holding underground water mains do not constitute an abnormal condition warranting strict liability). Section 519 provides for the imposition of strict liability upon those who are carrying on an "abnormally dangerous activity". Whether an activity is abnormally dangerous is a question of law for the court to decide. Langan v. Valicopters, Inc., 88 Wn.2d 855, 861, 567 P.2d 218 (1977).

Section 520 lists the factors to be considered when deter*501mining what constitutes an abnormally dangerous activity:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

An examination of these factors as they apply to the facts persuades us, as it did the Court of Appeals, that strict liability should not be imposed in this case.

It is conceded with regard to factors (a) and (b), that the volatile and highly explosive nature of natural gas potentially presents a high degree of risk of great harm. The invisibility of natural gas increases the risk of injury in that it decreases the likelihood escaping gas will be detected. As to factor (c), the phrase "the risk" plainly refers to the "high degree of risk" mentioned in factor (a). Thus, factor (c) addresses itself to the question of whether, through the exercise of ordinary care, the risk inherent in an activity can be reduced to the point where it can no longer be characterized as a "high degree of risk".

Some degree of risk of natural gas pipeline leaks will always be present. This does not mean, however, that the "high degree of risk" with which section 520 is concerned cannot be eliminated by the use of reasonable care with regard to the dangerous character of the commodity. See, e.g., Fields v. Western Ky. Gas Co., 478 S.W.2d 20, 22-23 (Ky. 1972); Bubrick v. Northern Ill. Gas Co., 130 Ill. App. 2d 99, 107-08, 264 N.E.2d 560 (1970). Gas companies are subject to strict federal and state safety regulations. 15 U.S.C. §§ 717, 719; 49 U.S.C. §§ 1671-1686; 49 C.F.R. § 192 (1983); WAC 480-93. Programs for corrosion control, pipeline testing, gas leak investigation, and awareness of con*502struction work near gas company facilities must be maintained. WAC 480-93-110, -170, -185, -190. Odorizers are placed in the gas itself to increase the likelihood of detection in those rare instances when natural gas does escape. In light of all this, we believe the high degree of risk involved in the transmission of natural gas through underground lines can be eliminated by the use of reasonable care and legislative safeguards.

Factors (d), (e), and (f) clearly weigh against imposition of strict liability. The underground transmission of gas is a matter of common usage which is appropriate to the place where it is carried on. In their brief, amici curiae on behalf of the American Gas Association estimate approximately 160 million people use gas for residential needs. About 35 percent of the total energy used by industry is provided by natural gas, United States Dep't of Energy Information Admin., Monthly Energy Review 23 (December 18, 1981); and 720,900 miles of distribution pipelines crisscross communities in every state and the District of Columbia, including 10,062 miles in Washington state. American Gas Ass'n, Gas Facts, 1982 Data 61, 63 (1983). Hence, it is entirely appropriate and necessary for communities to have gas lines placed underground.

New Meadows relies upon Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983 (1973) (strict liability imposed on hauling gasoline in commercial quantities as freight upon public highways). Siegler, however, is easily distinguishable. The court in Siegler stated:

Stored in commercial quantities, gasoline has been recognized to be a substance of such dangerous characteristics that it invites a rule of strict liability — even where the hazard is contamination to underground water supply and not its more dangerous properties such as its explosiveness and flammability. It is even more appropriate, therefore, to apply this principle to the more highly hazardous act of transporting it as freight upon the freeways and public thoroughfares.

(Citation omitted.) Siegler, at 457. The underground transmission of natural gas presents a significant contrast to the *503activity at issue in Siegler. Natural gas flows through a small (2-inch) pipe which is buried underground, away from the dangers of the surface world. There are no careless drivers, faulty brakes, or slippery roads with which to contend. The heightened danger resulting from the storage of a highly volatile substance in large commercial quantities, rolling at high speed on a well traveled highway, is also absent.

Furthermore, where there is the intervention of an "outside force beyond the control of the manufacturer, the owner, or the operator of the vehicle hauling [the gasoline]", the rule of strict liability should not apply. Siegler, at 460 (Rosellini, J., concurring). Here, the gas leak was allegedly caused when a contractor laying underground telephone cable for Pacific Northwest Bell damaged a 2-inch gas transmission line owned by defendant. Neither in its facts nor in its law does Siegler apply to this case.

We affirm the holding of the Court of Appeals that the transmission of natural gas through underground lines is not an "abnormally dangerous activity" upon which strict liability should be imposed, and reverse New Meadows' summary judgment against Washington Water Power on that issue. The case is remanded for trial on the issue of whether Washington Water Power exercised a degree of care commensurate to the danger involved in transmitting natural gas.

Utter, Brachtenbach, and Dimmick, JJ., and Morgan, J. Pro Tern., concur.

Pearson, J.

(concurring) — I concur with the majority. Strict liability may not be imposed under the Restatement (Second) of Torts § 520 (1977) on the basis of factors (a) and (b) alone.

Regarding factor (c), I agree with the majority that it is not present in this case. However, even if factor (c) were present, I would not impose strict liability under section 520. Comment h to section 520 states, in pertinent part:

*504A combination of the factors stated in Clauses (a), (b) and (c), or sometimes any one of them alone, is commonly expressed by saying that the activity is "ultraha-zardous," or "extra-hazardous." Liability for abnormally dangerous activities is not, however, a matter of these three factors alone, and those stated in Clauses (d), (e), and (f) must still be taken into account.

(Italics mine.) Thus, strict liability for abnormally dangerous activities may not be imposed absent the presence of at least one of the factors stated in clauses (d), (e) and (f). None of those three factors justify the imposition of strict liability in this case.

Rosellini, J.

(dissenting) — The majority today departs from the analysis of strict liability contained in Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983 (1973). In so doing, the majority forecloses recovery to a seriously injured individual who— indisputably — bears no responsibility for the accident. With this result I cannot agree.

As pointed out by the majority, the Restatement (Second) of Torts § 520 (1977) sets out six factors to be considered. Section 520 states:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

Comment f to section 520 states that all six factors should be considered; while it is not necessary that all elements be present, ordinarily several are required for strict liability.

*505Here, the majority opinion acknowledges that the first two elements are present; natural gas creates a high degree of risk, and there is a likelihood of great harm should gas escape from gas lines. The majority holds, however, that the final four elements of section 520 are missing, and therefore strict liability should not be applied. The majority's analysis misapplies the Restatement section by ignoring the similarity between transportation of gasoline on the highway and the transport of natural gas, and rejects sound policy reasons for applying strict liability to the facts of this case.

To begin with, the majority misapplies section 520 of the Restatement by concluding that factor (c), the inability to eliminate the risk by the exercise of reasonable care, does not apply to the transport of natural gas. I believe it does.

The transmission of natural gas is analogous to the transportation of gasoline. Natural gas, like gasoline, remains relatively safe if contained in its proper place, i.e., gas lines, storage tanks or even automobiles. Once natural gas or gasoline escapes, however, the exercise of ordinary or even extraordinary care frequently is incapable of averting an explosion. See Siegler v. Kuhlman, supra. In Siegler, we found this factor weighed heavily in favor of imposing strict liability. In the same way, the hazards associated with escaped natural gas demand imposition of strict liability.

The majority ignores this similarity by observing that the transport of natural gas involves no negligent drivers, slippery roads or faulty brakes. This distinction neglects the risks that may occur, such as negligent excavators, faulty digging equipment or vandals who may remove or damage warning signs.

Moreover, unlike the majority here, the court in Siegler did not feel compelled to slavishly total the number of factors in favor of imposition against those that did not. Instead, the court recognized the extreme hazard involved with the handling of this product and concluded sound policy dictated imposition of strict liability. In the same way, sound policy considerations dictate imposition of strict *506liability here.

First, principles of risk allocation support the premise that between two innocent parties, the one benefiting from an activity should bear the risk of loss. Having received a benefit, that party is then in a position to spread the risk of loss to consumers of the products.

Furthermore, where the abnormally dangerous activity involves high risk of explosions, the one engaged in that activity has a better opportunity to determine the cause of the incident and can therefore seek indemnification. The injured plaintiff can prove negligence as to a third party only with great difficulty.

Finally, the imposition of strict liability here will spur the natural gas companies to greater safety precautions, such as periodic inspections and supervision of excavating activities within the vicinity of their lines.

For these reasons and those discussed above, I believe strict liability should be imposed. I therefore dissent.

Williams, C.J., and Dore, J., concur with Rosellini, J.

MEMORANDUM OPINION

ELLIS, District Judge.

This case presents the question, unresolved in Virginia, whether the storage and removal of gasoline in underground tanks is an “abnormally dangerous” activity for which strict liability should be imposed.

The matter is before the Court on defendant Exxon Corporation’s (“Exxon”) motion for partial summary judgment with respect to counts II (strict liability) and V (contractual indemnity) of the complaint. Exxon contends (1) that the storage and removal of gasoline in underground tanks are not abnormally dangerous activities and (2) that plaintiff Arlington Forest Associate’s (“AFA”) cannot recover under the indemnity provision of the lease for claims not instituted by a third party. For the reasons set forth here, the Court concludes that the Supreme Court of Virginia, if presented with the first question, would hold that storage and removal of gasoline in underground tanks is not an abnormally dangerous activity for which common law strict liability should be imposed. 1 2 The Court also finds that AFA falls outside the contract indemnity provision and hence is not entitled to its benefits. Exxon’s motion for partial summary judgment must therefore be granted.

Background

From 1947 to 1987, Exxon and its predecessor corporations leased a gasoline station located at 4831 N. First Street in Arlington, Virginia. Exxon and its predecessor corporations, in turn, subleased the station to independent operators, who operated the station and its equipment continuously during the lease period. Included in the station equipment were five underground gasoline storage tanks, four 2,000 gallon tanks dating from 1947, and one 4,000 gallon tank installed in 1957. 2

In November of 1982, Exxon renewed a sublease with independent operator and co-defendant William Bryden. The lease stipulated that Bryden allow Exxon to replace all the storage tanks. The tanks had not been removed when AFA purchased the property in 1983. Not until 1988, after the lease had expired, were the storage tanks finally removed.

In 1989, AFA discovered elevated concentrations of organic vapors in the property’s subsurface soil. These findings reflect gasoline contamination of the soil. AFA contends that Exxon had been aware of gasoline leakage in the tanks since 1979, but had failed to remove them in time to prevent contamination of the property. AFA further maintains that the combination of tank age and soil conditions indicates a high likelihood that the tanks sustained serious corrosion damage leading to gasoline leakage. This leakage, according to AFA, is of special concern given the proximity of the service station property to a residential community. AFA alleges the property is approximately sixty feet from the nearest residential basement and one thousand feet from Lubber Run Creek, the nearest body of surface water. Based on *389 these facts, AFA contends that Exxon is strictly liable under Virginia common law for damages attributable to the gasoline leakage.

Analysis

Count II (Strict Liability)

The Supreme Court of Virginia has not squarely addressed whether the leakage of gasoline from underground storage tanks warrants the imposition of common law strict liability. In these circumstances, this Court’s task is to divine what Virginia’s highest court would conclude if faced with this question. See Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 209, 76 S.Ct. 273, 279, 100 L.Ed. 199 (1956) (Frankfurter, J. concurring). This divination involves a two-step process. First, Virginia law must be examined to ascertain what rule or rules the Supreme Court of Virginia would likely use in analyzing and deciding the liability of a landowner or user for the storage and removal of gasoline in underground tanks on the property. The second step is the application of such rule or rules to the facts at bar.

The Court concludes that Virginia, consistent with other jurisdictions, would apply the Restatement (Second) of Torts §§ 519 and 520 as the liability standard in this context. Although unsettled in earlier Virginia cases, it is now established that Virginia recognizes the applicability of the doctrine of strict liability in certain circumstances. Equally well established is that the applicability of the doctrine in Virginia is governed by §§ 519 and 520 of the Restatement. See M.W. Worley Construction Co. v. Hungerford Inc., 215 Va. 377, 210 S.E.2d 161, 164 (1974) (adopting “the rule of absolute or strict liability for direct damage to neighboring property” in blasting cases and citing §§ 519 and 520). In reaching this conclusion, Virginia is in line with the growing majority of jurisdictions today. 3

Strict liability attaches only to abnormally dangerous activities. This principle is embodied in § 519, which states in pertinent part that:

[o]ne 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. Restatement (Second) of Torts § 519(1).

The doctrine of strict liability derives from the notion that for certain abnormally dangerous activities the “one who conducts [it] should prepare in advance to bear the financial burden of harm proximately caused to others by such activity.” C. Morris & C.R. Morris on Torts, Ch. IX at 231 (2d ed. 1980). See also Sterling v. Velsicol Chemical Corp., 647 F.Supp. 303 (W.D.Tenn. 1986), rev’d on other grounds, 855 F.2d 1188 (6th Cir.1988) (compensatory damages awarded when chemical corporation was found strictly liable for contamination of residential water supply attributed to chemical leakage). “The liability arises out of the abnormal danger of the activity itself, and the risk that it creates,' of harm to those in the vicinity.” Restatement (Second) of Torts § 519 comment d. Thus, the abnormally dangerous activity “will be tolerated by the law, but [the company] must *390 pay its way by insuring the public against the injury it causes.” Peneschi v. National Steel Corp., 170 W.Va. 511, 295 S.E.2d 1, 6 (1982).

§ 520 lists six factors to be assessed in determining whether an activity is abnormally dangerous:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts § 520.

These factors are interrelated. Thus, a court should consider these factors as a whole, apportioning weight to each in accordance with the facts in evidence. See Restatement (Second) of Torts § 520 comment 1. And significantly, “[a]ny one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability.” Id. comment f.

Central to the determination of whether an activity is abnormally dangerous is whether it could be made safe through the exercise of reasonable care. See Philip Morris, Incorporated, v. Emerson, 235 Va. 380, 368 S.E.2d 268 (1988) (holding that strict liability would not apply to the disposal of the highly toxic chemical pentaborane, chiefly because such disposal could have been conducted safely if reasonable precautions had been taken); see also Hudson v. Peavey Oil Company, 279 Or. 3, 566 P.2d 175 (1977) (no strict liability where evidence did not show that the risk of seepage from underground gasoline tanks could not be eliminated by reasonable care). This test, expressed in § 520(c), does not contemplate that all risk be capable of elimination by due care. Absolute safety is not required. Rather, the risk must be reducible by due care to a point where the likelihood of harm is no longer high. 4 See New Meadows Holding Co. by Raugust v. Washington Water Power Company, 102 Wash.2d 495, 687 P.2d 212 (1984) (noting, in denying strict liability for leakage from natural gas lines, that § 520(c) is concerned with the capacity to eliminate high degrees of risk and that some degree of risk will always be present). If an activity can be performed safely with ordinary care, negligence serves both as an adequate remedy for injury and a sufficient deterrent to carelessness. Strict liability is reserved for selected uncommon and extraordinarily dangerous activities for which negligence is an inadequate deterrent or remedy.

Maintained, monitored, and used with due care, underground gasoline storage tanks present virtually no risk of injury from seepage of their contents. They are not abnormally dangerous. Sound tanks, timely replacement of impaired tanks, modern corrosion control techniques, and adequate testing for leakage can eliminate all but a tolerably small amount risk. 5 The injury alleged in this case apparently oc *391 curred because the tanks fell into a preventable state of disrepair. Only those activities that remain dangerous despite the exercise of all reasonable precautions warrant imposition of strict liability. Here, reasonable precautions would have sufficed to prevent the harm.

That strict liability is inapplicable in this case is bolstered by the factors enumerated in § 520(d) and (e). Under § 520(d), an activity may involve inherent risks of harm and still not be considered abnormally dangerous if the activity is a matter of common usage. See Restatement (Second) of Torts § 520 comment i. Comment i defines common usage as “customarily carried on by the great mass of mankind or by many people in the community.” To be sure, the specific activity of storing and removing gasoline from commercial underground gasoline storage tanks is not carried on by the “great mass of mankind.” Yet the presence and use of filling stations in and near residential areas is widespread and routine. In fact, filling stations with underground tanks are commonplace in most communities throughout the country. Every town, hamlet, or neighborhood has one, if not many. Populous areas typically support several in close proximity. Some dangerous activities are so generally carried on as to be regarded as customary. For example, in New Meadows Holding Co., the Supreme Court of Washington held that the transmission of natural gas is a matter of common usage. The court based its conclusion on the following facts: approximately 160 million people use gas for residential needs; about thirty-five percent of the total energy used by industry is provided by natural gas; and roughly 720,-900 miles of distribution pipelines crisscross communities nationwide. 687 P.2d at 216. Despite the fact that the specific form of gas transmission at issue in New Meadows Holding Co. was being conducted by a large utility company and not by individuals, the court nevertheless concluded that the activity was a matter of common usage. Similarly, although gasoline service stations may not themselves be operated by “the great mass of mankind,” they are so pervasive as reasonably to be considered “matters of common usage.”

Section 520(e) considers the appropriateness of an activity to its location. See Peneschi, 170 W.Va. 511, 295 S.E.2d 1 (holding that the controlling factor in applying strict liability is the relationship of the activity to its surroundings). The more appropriate an activity is to its setting, the less likely it is to be considered abnormally dangerous. Clearly, filling stations are very appropriate in and near residential areas. They provide residents with necessary, desired, and convenient sources of fuel for their vehicles. Nothing in this case suggests that the station formerly situated on AFA’s property was any less appropriate to its location than the average neighborhood service station.

Thus, considering the interrelated factors of § 520 as a whole and apportioning special weight to those factors most pertinent to the facts presented by this case, this Court concludes that under Virginia law, underground gasoline storage tanks are not abnormally dangerous. Common law strict liability does not apply. The result reached here is consistent with decisions of the Supreme Court of Virginia that apply strict liability narrowly. The court has allowed strict liability in blasting cases because of the unpredictability of the danger associated with even the most cautious blasting. Worley, 210 S.E.2d at 163; Laughon & Johnson, Inc. v. Burch, 222 Va. 200, 278 S.E.2d 856 (1981). The supreme court has, however, held not inherently or abnormally dangerous activities involving disposal of pentaborane, Philip Morris, Incorporated, 235 Va. 380, 368 S.E.2d 268; transmission of steam, Norfolk and Western Railway Company v. Johnson, 207 Va. 980, 154 S.E.2d 134, cert. denied, 389 U.S. 995, 88 S.Ct. 498, 19 L.Ed.2d 491 (1967); operation of a sawmill, Epperson v. DeJarnette, 164 Va. 482, 180 S.E. 412 (1935); erection of a building, Richmond v. Sitterding, 101 Va. 354, 43 S.E. 562 (1903); and construction of a bridge, Bibb’s Adm’r v. N. & W. R.R. Co., 87 Va. 711, 14 S.E. 163 *392 (1891). 6 The risk of harm from a gasoline station storage tank is certainly no greater than the risk from many of these activities. Certainly the risk is significantly less than that associated with the disposal of pentaborane, a chemical so toxic that even slight exposure to its fumes may be fatal. Yet the Supreme Court of Virginia declined to extend strict liability to even this plainly perilous activity. Philip Morris, Incorporated, 368 S.E.2d 268.

Courts in other jurisdictions have reached the same conclusion. See Peneschi, 295 S.E.2d at 5 (gasoline storage in a filling station is a “natural use of the land” and is not unduly dangerous for purposes of strict liability); Hudson, 566 P.2d at 177 (strict liability denied where the evidence did not conclusively show that the harm to be anticipated from underground seepage of gasoline was grave or that the risk of seepage could not be eliminated by the exercise of reasonable care).

Two courts have reached the opposite result. In City of Northglenn, Colorado v. Chevron U.S.A. Inc., 519 F.Supp. 515 (D.Colo.1981), the court applied strict liability to the underground storage of several thousand gallons of gasoline in a suburban area, finding that the widespread use of gasoline did not diminish its inherently dangerous character. In Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969), the court held that strict liability was available for underground gasoline tanks in close proximity to a residence and well, asserting that the usage was not common. Neither Northglenn nor Yommer is persuasive here because both decisions fail to accord sufficient weight to the potential for reasonable care to mitigate the risk of injury.

AFA argues that characterizing the activity in this case as the storage and removal of gasoline in underground tanks is erroneous and asserts that the activity ought to be more particularly described as the storage of gasoline in moribund underground tanks. AFA suggests, no doubt correctly, that storing gasoline in moribund tanks cannot be made safe except by ceasing such activity entirely. In other words, AFA’s position is that no amount of reasonable care can make moribund tanks safe. AFA therefore contends that such activity is abnormally dangerous under § 520 and should give rise to strict liability.

AFA misconstrues the definition of “abnormally dangerous.” An activity is abnormally dangerous if it is “dangerous in its normal or nondefective state.” Fallon v. Indian Trail School, 148 Ill.App.3d 931, 102 Ill.Dec. 479, 481, 500 N.E.2d 101, 103 (1986), appeal denied, 114 Ill.2d 544, 108 Ill.Dec. 416, 508 N.E.2d 727 (1987) (denying strict liability for use of a trampoline). For strict liability purposes, the danger cannot be predicated on “mere causal or collateral negligence of others with respect to [the activity] under the particular circumstances.” Id. Here, the moribund condition of the tanks is a particular circumstance indicative of negligence or defect. It is not the normal or nondefective condition of underground tanks.

AFA’s particularized approach to defining the nature of an activity would, in effect, enable plaintiffs to invoke strict liability for all negligently-conducted activity. Performing a dangerous activity in a negligent manner cannot be made safe except by ceasing to behave negligently. Any plaintiff in a negligence action could simply characterize the offending behavior as incapable of being safely performed even with due care, thus bringing it within the scope of strict liability. For example, the activity of “driving a car” can be made sufficiently safe by the exercise of reasonable care. But “driving a car at an excessive rate of speed” cannot be made safe except by ceasing to drive too fast. Clearly this approach would extend the reaches of strict liability far beyond the bounds of the law and of common sense. The Court does not doubt that the injury inflicted in this case stems from the presence of mori *393 bund storage tanks; however, this fact properly relates to the issue of negligence.

Certain activities cannot be made safe by due care. Where society is unwilling to assume the additional risk of injury, strict liability is imposed to shift the costs of the additional risk to the party conducting and benefiting from the dangerous activity. Where risk of harm can be avoided by reasonable care, a sufficient remedy exists in negligence. The refusal to extend strict liability to the storage and removal of gasoline from underground tanks does not foreclose recovery by AFA under other theories of liability.

Count V (Contractual Indemnity)

“The guiding light in the construction of a contract is the intention of the parties as expressed by them in the words they have used, and courts are bound to say that the parties intended what the written instrument plainly declares.” W.F. Magann Corp. v. Virginia-Carolina Electric Works Inc., 203 Va. 259, 123 S.E.2d 377, 378 (1962). AFA contends that it should be allowed to recover against Exxon under the indemnity provisions of section thirteen of paragraph two of the lease between its and Exxon’s predecessors. The pertinent language reads:

After [Exxon] takes full possession of said premises, [Exxon] covenants and agrees to indemnify and save [AFA] harmless from any and all claims, demands, suits, actions, judgments and recoveries for or on account of damage or injury (including death) to property or person of [Exxon], its agents, servants, or other party or parties caused by or due to the fault or negligence of [Exxon], its sublessee and assigns in the operation of the service station.

AFA alleges that the phrase “other party or parties” is ambiguous and, as a matter of contract interpretation, inappropriate for summary judgment. The Court finds no such ambiguity. Plainly read, the section provides indemnity for damage to property of Exxon, to property of its agents and servants, and to property of third parties. Damage claimed by AFA to its own property is not covered. Thus, AFA may not recover against Exxon under this contractual provision for damages not asserted by third parties.

Conclusion

For the reasons stated here, this Court concludes that the Supreme Court of Virginia would find that storage and removal of gasoline from underground storage tanks are not abnormally dangerous activities for which common law strict liability should be imposed. Furthermore, the plain language of the indemnity provision of the lease excludes recovery by AFA for damages sustained by its own property. Exxon’s Motion for Partial Summary Judgment as to Counts II and V of Amended Complaint should be, and hereby is, GRANTED.

Dolliver, J.

This is an appeal from a judgment against appellants for damages resulting from their crop spraying *857 activities. Patrick and Dorothy Langan, respondents, own a small (2 1/2 to 3 acre) farm in the Yakima Valley. The Langans are organic farmers: that is, they use no nonor-ganic fertilizers, insecticides or herbicides to aid them in their farming but rely on natural fertilizers and natural pest control agents. They had planned to can and sell their produce to organic food buyers.

Valicopters, Inc., is a Washington corporation which engages in the aerial application of agricultural pesticides. Gene Bepple, one of the owners of Valicopters, Inc., was the helicopter pilot at the time of the incident giving rise to this lawsuit. The Thalheimers, doing business as Thalheimer Farms, owned and farmed the land adjoining that of the respondents. It was their land that was being sprayed by Valicopters. Simplot Soilbuilders sold the agricultural chemical to Thalheimers for aerial application.

On June 3, 1973, Bepple sprayed for Colorado beetle infestation on the Thalheimer farm with a chemical pesticide known as Thiodan. A small patch of the farm was sprayed with the chemical Guthion. While applying the pesticides to Thalheimers' property, Bepple traveled approximately 45 miles per hour while 6 to 8 feet off the ground with a 42-foot application boom extending from the sides of the helicopter. Patrick Langan testified that, during one spraying pass, the helicopter began spraying while it was over his property. This testimony was disputed. He further testified that the spray settled on the entire length of their tomato, bean, garlic, cucumber and Jerusalem artichoke rows.

The Langans and other organic farmers founded and are members of the Northwest Organic Food Producers' Association (NÓFPA). The bylaws of NOFPA contain the following pertinent provisions:

7. No poisonous insecticides, repellents, herbicides, artificial fertilizers, stimulants or hormones may be used on food or in soil in which products are grown or animals are grazed. If any such item is applied by the grower to *858 any committed acreage that has been previously committed and certified, the acreage will be withdrawn from certification and this farmer cannot be recertified without approval of the Executive Committee.

9. No member shall be allowed to market foods or advertise food as certified organically grown by NOFPA if laboratory tests on the finished crop indicates [sic] the presence of more than ten percent (10%) of the maximum pesticide residue tolerances allowable by the Food and Drug Administration. In the event the finished crop reflects a residue higher than the allowable tolerances set forth in this section, the member's seal for any such crop shall immediately be suspended and public notice made thereof.

NOFPA Bylaws, art. 4, §§ 7, 9.

A laboratory test conducted after the spraying indicated the presence of 1.4 parts per million by weight of Thiodan on the Langans' crop tissue. The United States Department of Health Education and Welfare, Food and Drug Administration's tolerance for Thiodan on tomatoes and beans is 2.0 parts per million. Following the test results, the board of directors of NOFPA revoked the Langans' certification as organic food growers in conformance with bylaw No. 7. The Langans' entire property was decertified in conformance with the NOFPA rule which requires decertification when a portion of the land is contaminated.

Due to the decertification, the Langans did not grow their tomatoes and beans to fruition. Instead, they pulled them from the ground to prevent further contamination of the soil. The Langans had no contract to sell the contaminated tomatoes and beans commercially.

After a jury trial, a judgment in the amount of $5,500 was entered against appellants. They appealed to the Court of Appeals, Division Three. That court certified the case to this court and we accepted certification.

At the outset, it must be determined whether there was substantial evidence to support the jury's finding that respondents' damage occurred as a result of the spraying. Appellants contend that NOFPA erroneously interpreted *859 its own bylaws. They argue that neither rule No. 7 nor rule No. 9 required immediate decertification of appellants' property and that the tomatoes and beans should have been tested for chemicals when those crops had fully matured. The bylaws of that organization are essentially a contract between NOFPA and its members. See Rodruck v. Sand Point Maintenance Comm'n, 48 Wn.2d 565, 295 P.2d 714 (1956). In construing a contract, the intention of the parties will be given great, if not controlling, weight. See Kennedy v. Weyerhaeuser Timber Co., 54 Wn.2d 766, 344 P.2d 1025 (1959).

A director of NOFPA testified that their interpretation of rule No. 7, coupled with the basic purpose ofSNOFPA (to insure consumers that the products are organically grown if they are sold under the organization's seal) required decer-tification of respondents' farm. The Langans apparently agreed with this interpretation and did not question the legitimacy of the décertification. This decertification, which prompted the Langans to pull the crops, provided substantial evidence for the jury to conclude that they suffered damage as a result of crop spraying.

The next issue is whether the trial court erred by instructing the jury that appellants would be strictly liable for damage that was proximately caused by their aerial spraying. The trial judge gave the following instruction:

If you find that defendants' chemicals fell upon plaintiffs' crops, you are instructed that as a matter of law the defendants are liable for such damage to plaintiffs' crops, if any, as you find was proximately caused by defendants' spray application.

Liability for damage caused by crop dusting or spraying generally is imposed on the basis of either negligence or strict liability. See generally Liability for Injury Caused by Spraying or Dusting of Crops, Annot., 37 A.L.R.2d 833 (1971). The courts in most jurisdictions that have held crop dusters liable have used the theory of negligence. See, e.g., Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454 (1948); Hammond Ranch Corp. v. Dodson, 199 Ark. 846, 136 *860 S.W.2d 484 (1940); Miles v. A. Arena & Co., 23 Cal. App. 2d 680, 73 P.2d 1260 (1937); Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973). However, other opinions which have ostensibly relied upon the principles of negligence have been criticized by legal writers because the reasoning is not clear or more nearly resembles strict liability. Comment, Crop Dusting: Two Theories of Liability? 19 Hastings L.J. 476, 482-89 (1968); Note, Crop Dusting: Legal Problems in a New Industry, 6 Stan. L. Rev. 69, 75-80 (1953).

Three jurisdictions have held crop dusting to be an activity to which the principles of strict liability apply. Young v. Darter, 363 P.2d 829 (Okla. 1961); Loe v. Lenhardt, 227 Ore. 242, 362 P.2d 312 (1961); Gotreaux v. Gary, 232 La. 373, 94 So. 2d 293 (1957) (applying civil law). In Loe v. Lenhardt, supra, Justice Goodwin, writing for the majority, noted that the dangers of spraying agricultural chemicals by aircraft has been the subject of considerable legislative attention nationwide, citing the laws of 29 states. These laws, he concluded, were evidence of the dangerous character of aerial spraying. The court recognized the activity was one capable of inflicting damage notwithstanding the exercise of utmost care by the applicator, and that the damage was within the scope of the risk created by spraying an adjoining field. The court cited Bedell v. Goulter, 199 Ore. 344, 362-63, 261 P.2d 842 (1953), a case involving strict liability for blasting, in which it stated:

" * * * Basic to the problem is 'an adjustment of conflicting interests', ... of the right of the blaster, on the one hand, to pursue a lawful occupation and the right of an owner of land, on the other, to its peaceful enjoyment and possession. Where damage is sustained by the latter through the nonculpable activities of the former, who should bear the loss — the man who caused it or a 'third person', as Judge Hand says, "who has no relation to the explosion, other than that of injury'?"

Loe v. Lenhardt, supra at 253-54.

In Washington, this court has adopted the Restatement (Second) of Torts §§ 519, 520 (Tent. Draft No. 10, *861 1964). Pacific Northwest Bell Tel. Co. v. Port of Seattle, 80 Wn.2d 59, 491 P.2d 1037 (1971); Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972). Section 519 of the Restatement provides:

(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 such harm.

(2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous.

Section 520 lists the factors to be used when determining what constitutes an abnormally dangerous activity:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) Whether the activity involves a high clegree of risk of some harm to the person, land or chattels of others;

(b) Whether the gravity of the harm which may result from it is likely to be great;

(c) Whether the risk cannot be eliminated by the exercise of reasonable care;

(d) Whether the activity is not a matter of common usage;

(e) Whether the activity is inappropriate to the place where it is carried on;.and

(f) The value of the activity to the community.

Whether an activity is abnormally dangerous is a question of law for the court to decide. Siegler v. Kuhlman, supra; Restatement (Second) of Torts § 520, comment (1) (Tent. Draft No. 10, 1964). In making this determination, we have considered each of the factors listed in the Restatement, section 520. We note that not all of the elements listed in section 520 must weigh equally in favor of characterizing an activity as abnormally dangerous in order that we may so find it to be.

In determining whether the danger is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and *862 ordinarily several of them will be required for strict liability. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any exact definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm which results from it, even though it is carried on with all reasonable care.

Restatement (Second) of Torts § 520, comment (f) (Tent. Draft No. 10, 1964). See generally Peck, Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225 (1971). However, in this case, each test of the Restatement is met.

§ 520(a): Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others.

It is undisputed among the authorities cited to us that crop dusting involves an element of risk of harm. In Note, Crop Dusting: Legal Problems in a New Industry, 6 Stan. L. Rev. at 12-lb, the author points out that the drift of chemicals is virtually unpredictable due to three "uncertain and uncontrollable factors: (1) the size of the dust or spray particles; (2) the air disturbances created by the [applicat-ing aircraft]; and (3) natural atmospheric forces." The author discusses these three factors in detail and notes:

In the opinion of leading scientists who are working to alleviate the dangers of crop dusting, it is impossible to eliminate drift with present knowledge and equipment. Experience bears this out.

6 Stan L. Rev. at 75. The author states further that the problem of drift is reduced but not eliminated by the use of helicopters. Subsequent commentators have made the same observations about the uncontrollability of drift. See, e.g., Comment, Crop Dusting: Two Theories of Liability? supra at 477-79. In this case, there is no evidence that it is possible to eliminate the risk of drift in crop spraying.

*863 § 520(b): Whether the gravity of the harm which may result from it is likely to be great.

Whether there will be great harm depends upon what adjoining property owners do with their land. For example, one property owner may grow wheat (a narrow-leafed crop) and his neighbor may grow peas (a broad-leafed crop). The wheat farmer may wish to spray his crop with the chemical herbicide (weed killer) 2,4-D, which kills only broad-leafed plants. If the 2,4-D drifts onto the pea farmer's property, his entire crop could be destroyed since peas are broad-leafed plants. Frear, Chemistry of Insecticides, Fungicides and Herbicides 316 (2d ed. 1948). The reported cases are illustrative of the many possible fact situations which indicate that neighboring property may be sensitive to and damaged by the spraying activity of an adjoining landowner. See Comment, Crop Dusting: Two Theories of Liability? 19 Hastings L.J. 476, 479 n.38. The cases cited in that note include the following situations: S.A. Gerrard Co. v. Fricker, 42 Ariz. 503, 27 P.2d 678 (1933) (bees killed by insecticide Dutox No. 20); W.B. Bynum Cooperage Co. v. Coulter, 219 Ark. 818, 244 S.W.2d 955 (1952) (cotton damaged by 2,4-D); McPherson v. Billington, 399 S.W.2d 186 (Tex. Civ. App. 1965) (hogs killed by arsenical). The extent of damage can be very high. See, e.g., Crouse v. Wilbur-Ellis Co., 77 Ariz. 359, 272 P.2d 352 (1954) (plaintiff recovered $10,000 when his cantaloupe crop was damaged by insecticide containing sulphur); Sanders v. Beckwith, 79 Ariz. 67, 283 P.2d 235 (1955) (plaintiff recovered $10,000 when his dairy herd was injured by DDT and benzene hexachloride).

As the present case illustrates, it is economically damaging for an organic farmer who is a member of NOFPA to apply nonorganic materials to his crops because he would lose the association's certification. There was substantial evidence before the trial court that, once an organic farmer loses his certification, it is highly unlikely that he will be able to sell his crops on the regular commercial market due to his failure to enter into contracts with commercial *864 produce buyers before the season begins, and, even if he could sell his crops to a commercial produce buyer, the farmer would be unable to command as high a price for his goods as he could on the organic market.

§ 520(c): Whether the risk cannot be eliminated by the exercise of reasonable care.

The same elements that produce a high degree of risk of harm, namely the uncontrollability of dust or spray drift (§ 520(a) above), also cannot be eliminated by the exercise of reasonable care. See Note, Crop Dusting: Legal Problems in a New Industry, supra at 75.

§ 520(d): Whether the activity is not a matter of common usage.

The Restatement (Second) of Torts § 520(i) (Tent. Draft No. 10, 1964), observes "An activity is a matter of common usage if it is customarily carried on by the great mass of mankind, or by many people in the community." Although we recognize the prevalence of crop dusting and acknowledge that it is ordinarily done in large portions of the Yakima Valley, it is carried on by only a comparatively small number of persons (approximately 287 aircraft were used in 1975) and is not a matter of common usage.

§ 520(e): Whether the activity is inappropriate to the place where it is carried on.

Given the nature of organic farming, the use of pesticides adjacent to such an area must be considered an activity conducted in an inappropriate place.

§ 520(f): The value of the activity to the community.

As a criterion for determining strict liability, this factor has received some criticism among legal writers. In 2 Harper & James, Law of Torts, Comment to § 14.4 (Supp. 1968), the authors suggest that section 520(f) is not a true element of strict liability: "The justification for strict liability, in other words, is that useful but dangerous activities must pay their own way." See also Note, Regulation and *865 Liability in the Application of Pesticides, 49 Iowa L. Rev. 135, 144-45 (1963).

There is no doubt that pesticides are socially valuable in the control of insects, weeds and other pests. They may benefit society by increasing production. Whether strict liability or negligence principles should be applied amounts to a balancing of conflicting social interest — the risk of harm versus the utility of the activity. In balancing these interests, we must ask who should bear the loss caused by the pesticides. See Note, Regulation and Liability in the Application of Pesticides, supra; Prosser, Law of Torts § 59 (2d ed. 1955); Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972) (Rosellini, J., concurring).

In the present case, the Langans were, eliminated from the organic food market for 1973 through no fault of their own. If crop dusting continues on the adjoining property, the Langens may never be able to sell their crops to organic food buyers. Appellants, on the other hand, will all profit from the continued application of pesticides. Under these circumstances, there can be an equitable balancing of social interests only if appellants are made to pay for the consequences of their acts.

We realize that farmers are statutorily bound to prevent the spread of insects, pests, noxious weeds and diseases. RCW 15.08.030 and RCW 17.10.140, .150. But the fulfillment of that duty does not mean the ability of an organic farmer to produce organic crops must be destroyed without compensation.

Thus, for the reasons mentioned above, we find that the trial court did not err by instructing the jury on strict liability.

It is next contended by all appellants that the trial court erred when it gave the following instruction on wanton misconduct:

Wanton misconduct is the intentionally doing of an act which one has a duty to refrain from doing or the intentional failure to do an act which he has a duty to do, in reckless disregard of the consequences and under such *866 surrounding circumstances and conditions that a reasonable man would know, or should know, that such conduct would, in a high degree of probability, result in substantial harm to another's property.

The respondents contend that sufficient evidence is provided by the testimony of Patrick Langan. He testified that the helicopter flew over himself and his house at a low level while the spray was turned on. Respondents claim that this was in violation of WAC 16-235-050, which provides:

Aircraft pilots during spraying operations, are prohibited from turning and/or low flying ... (2) directly over an occupied structure such as a residence, . . . except by permission of the person(s) whose occupied structure is involved.

Appellants simply claim that this evidence is insufficient to support the instruction given.

Each party is entitled to have his theory of the case presented to the jury if there is substantial evidence to support it. Hester v. Watson, 74 Wn.2d 924, 448 P.2d 320 (1968). We think Mr. Langan's testimony and the administrative rule amply support the giving of this instruction.

There is no reversible error; the judgment of the trial court is affirmed.

*672 LINDE, J.

We are called upon to decide whether a farmer who employs field burning as an agricultural technique is strictly liable to pay damages when the fire enters upon and destroys a neighbor’s property, without any need to show that the field burning was conducted negligently. The Court of Appeals so held in a decision in banc, three judges dissenting, 55 Or App 12, 637 P2d 167 (1982), and the theoretical and practical importance of the issue led us to allow review.

The course of events is essentially undisputed. Defendant was engaged in the commercial production of grass seed on 55 leased acres in Linn County, near the 1-5 interstate highway. After the grass seed was harvested, defendant and a crew of men equipped with mobile water tanks burned the field by setting fire to dry straw, having first plowed a protective strip around the perimeter. While defendant’s field was being burned, plaintiffs’ adjoining field caught fire, causing damage to real and personal property stipulated at $8,017. Although no one testified to seeing how the fire on plaintiffs’ property started, the witnesses, mostly members of defendant’s crew, agreed that probably a whirlwind carried burning material from defendant’s field. The record shows that the fire also spread to other nearby property of persons not involved in this action.

Plaintiffs sued for damages on theories of trespass, negligence, and strict liability. At the conclusion of the trial, defendant moved for a directed verdict on the grounds that he would not be liable for an unintentional trespass unless his actions were either negligent or abnormally dangerous, that there was no evidence of negligence, and that agricultural field burning as conducted by defendant is not an abnormally dangerous activity. Plaintiffs moved for a directed verdict on their strict liability claim. The trial court denied plaintiffs’ motion and directed a verdict for defendant on all counts.

On appeal, plaintiffs abandoned the negligence count and assigned as error only the denial of their motion for a directed verdict based on their strict liability theories of trespass and abnormally dangerous activity. Although *673 technically the assignment of error did not include the allowance of a directed verdict for defendant, the parties and the Court of Appeals treated the trial court’s rulings as “two sides of one coin.” 55 Or App at 14 n. 3. This follows when the decision whether an activity is abnormally dangerous or otherwise subject to strict liability is a legal characterization to be made by the judge, as' was stated in Loe v. Lenhardt, 227 Or 242, 249, 362 P2d 312 (1961). It is not contended in this case that the determination depends on disputed evidence of specific events or circumstances requiring jury adjudication. The Court of Appeals proceeded to reject plaintiffs claim for strict liability for trespass as such, relying on statements in Loe and in Hudson v. Peavey Oil Co., 279 Or 3, 566 P2d 175 (1977) that negated this theory at least with respect to substances released from defendant’s land. 1 The court concluded, however, that the trespass resulted from an “ultra-hazardous” activity, defendant’s field burning, and that therefore plaintiffs were entitled to a directed verdict for the stipulated damages. 55 Or App at 18.

I. Abnormally dangerous activities.

The modern evolution of this form of strict liability in Oregon can be traced from Bedell v. Goulter, 199 Or 344, *674 361, 261 P2d 842 (1963), which took as its starting point that this state followed the rule of Rylands v. Fletcher, (1868) L.R., 3 H.L. 330, 1 Eng Rui Cas 236, with respect to damage done by the escape of stored water. 2 Bedell applied the rule to explosives, holding defendants strictly liable for a trespass when their blasting operations damaged a dwelling about 1500 feet away. Liability later was denied, however, when explosives caused harm uncharacteristic of their dangerousness, the death of mink frightened by the noise. Gronn v. Rogers Construction, Inc., 221 Or 226, 350 P2d 1086 (1960). The blasting in those cases was intentional, but the mere storage of highly explosive gas vapors in a populated area sufficed to impose strict liability for wrongful death from a nonnegligent explosion. McLane v. Northwest Natural Gas, 255 Or 324, 467 P2d 635 (1970). In 1961, Loe v. Lenhardt, supra, found an “extra hazardous” activity in aerial cropdusting with a chemical defoliant which damaged a neighbor’s crops, a decision followed in Bella v. Aurora Air, Inc., 279 Or 13, 566 P2d 489 (1977).

Thus, after the acceptance of Rylands v. Fletcher, the activities giving rise to strict liability in modern Oregon cases have been the storage or use of explosive material and aerial spraying of destructive chemicals. How have the holdings been explained?

In Bedell v. Goulter, supra, the court adopted the reasoning of Exner v. Sherman Power Co., 54 F2d 510 (2nd Cir 1931), quoting extensively from the opinion of Judge Augustus Hand in that case. The chief issue was not so much whether an explosion of dynamite, intentional or accidental, results in strict liability but whether the harm must result from the tangible impact of debris scattered by the explosion, and this court followed Exner to reject that distinction. Strict liability followed simply from the intrinsic dangerousness of explosives. Justice Lusk’s extensive review of the cases quoted from Exner:

“ ‘When a person engages in such a dangerous activity, useful though it be, he becomes an insurer.’ ”

*675 “ '* * * If damage is inflicted, there ordinarily is liability, in the absence of excuse. When, as here, the defendant, though without fault, has engaged in the perilous activity of storing large quantities of a dangerous explosive for use in his business, we think there is no justification for relieving it of liability, and that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss.’ ”

199 Or at 352. The opinion then quoted, though it did not particularly rely on, Restatement of Torts § 520, which at that time defined an activity as “ultrahazardous” if it “(a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage.” Only “common usage,” but neither the particular location of the dangerous activity nor its social usefulness were factors in the rule:

“Considering the ultrahazardous character of the activity, we find no reason for making a distinction between the right of the owner of a dwelling house which is damaged by a blast set off in open country 2000 feet distant from his house, and the right of an owner of a skyscraper in a large city damaged by a blast set off on adjoining property; or for distinguishing between a single blast which demolishes a house, and a series of blasts continued over a long period of time which crack the foundations of a house and cause it to settle. In either case the ensuing loss should be considered the blaster’s business.”

199 Or at 363.

Loe v. Lenhardt, supra, followed the reasoning of Bedell to impose strict liability on aerial spraying of crops with destructive chemicals. It added to the analysis a substantive element of attention to legislative determinations concerning the dangerous activity and the procedural rule that the legal question of strict liability must be decided by the court. 227 Or at 250-253.

McLane v. Northwest Natural Gas, supra, in turn, amended the preceding explanations in three respects. Justice Holman’s opinion made clear that the danger of an activity did not depend on the frequency with which it miscarries, though this could be an important indicator, and that the destructive effects of the activity need not *676 occur beyond the defendant’s premises. Also, McLane disavowed the statement in Bedell, quoted above, that would disregard the place in which the activity is carried on, citing a proposed change in Restatement (Second) § 520 that “makes the locality in which the activity is carried on a relevant factor.” The locality was said to be relevant to determining whether an activity is “extraordinary, exceptional, or unusual,” 255 Or at 328-329. This was reaffirmed in Reter v. Talent Irrigation District, supra note 1, which denied strict liability under Rylands for underground seepage from an irrigation ditch. The court found that the activity of irrigation “can hardly be called ‘exceptional, or unusual, considering the locality in which it is carried on.’ ” As a separate point, not tied to the locality, the court noted that the canals were relatively modest in size and that “the risk of serious harm created by the activity is minimal.” 258 Or at 145.

In a subsequent case, Nicolai v. Day, 264 Or 354, 506 P2d 483 (1973), the court equated the older terms “extra hazardous” or “ultrahazardous” with the phrase “abnormally dangerous” employed in § 520 of the second Restatement of Torts, and it referred to the “factors” there proposed for determining whether an activity is “abnormally dangerous.” 3 The holding was that the slide of a landfill from defendant’s land upon plaintiffs land did not qualify for strict liability because the risk could have been eliminated by the exercise of reasonable care. 264 Or at 359. The reference to the revised Restatement formulation, however, in some respects diverged from this court’s decisions.

*677 The change of phrasing from “extra hazardous” or “ultrahazardous” to “abnormally dangerous,” though subtle, created an ambiguity. To what norm does “abnormally” refer? The older phrases kept the focus on the hazardous character of the activity, on its essentially irreducible potential for causing substantial harm. Like them, “abnormally dangerous” literally means extraordinarily dangerous, much more dangerous than other activities. But the newer phrase lends itself to invoking social as well as physical norms, as if it read “abnormal and dangerous activities,” thereby mixing questions of cause and effect, or probabilities and magnitudes of harm in the natural world, with what may be called societal considerations, like the “factors” listed but not further discussed in Nicolai v. Day, supra.

The very concept of danger, risk, or hazard, as we observed in Bella v. Aurora Air, Inc., supra, combines the factual judgment that an act or event chances a particular result with the value judgment that this result is in some important degree harmful. No one speaks of a “danger” of desirable or neutral consequences.

The probability of the harm is a fact in the natural world. The harm may or may not have an economic measure; the practice of compensating for personal injuries in money does not mean that the law tests the danger of such injury by the estimated compensation. While the physical probabilities may lend themselves to objective or “scientific” assessment, people may deeply disagree how much, if any, “harm” is represented even by a loss measurable in the marketplace, as many contemporary disputes over management of the natural environment show. But the nature of harm is not ordinarily an issue in the kind of injury to person or property for which one party seeks to recover damages from another, and it is not an issue here. The destruction of plaintiffs property was an actionable trespass, though unintended, if it resulted from an activity so dangerous as to give rise to strict liability, see Hudson, supra, Martin v. Union Pacific Railroad, supra note 1, and if the harm was of the kind whose potential occurrence made the activity dangerous, Gronn v. Rogers Construction Co., supra.

*678 Whether the danger is so great as to give rise to strict liability depends both on the probability and on the magnitude of the threatened harm. If the consequences of a mishap are potentially lethal or highly destructive of health or property, a slight likelihood that they will occur suffices, see McLane v. Northwest Natural Gas, supra, 255 Or at 329, even if the harm in the actual occurrence is less severe. Conversely, we have held that even when the risk “only moderately threatens economic activities rather than harm to life, health, or property or environment,” the activity may carry strict liability if the consequences are highly probable or, as stated in Bella, if the activity can be carried on “only with a substantially uncontrollable likelihood that the damage will sometimes occur.” 279 Or at 24. Willingness to conduct an activity carrying a high probability of harm to others, however undesired, is what the Loe opinion described as “intentional” in explaining Martin v. Reynolds Metals Co., see supra note 1, where the likely harm to any person from the aerial dissemination of chemicals was moderately severe but substantially uncontrollable.

The assessment of extraordinary danger thus has been based on the magnitude of harmful events and their probability despite all reasonable precautions, as stated in the first three of the “factors” quoted in Nicolai v. Day, supra note 3. The role of societal criteria in our decisions is more doubtful. The opinions have made no clear distinction between the notions of “common usage” and of appropriateness of an activity to the location, nor whether “common usage” and “appropriate location” are identical, overlapping, or cumulative tests for escaping strict liability for highly dangerous activities. The test of common or uncommon usage has been recited to mean not only an activity that is widely carried on by many persons but also one that is accepted as natural or necessary by the inhabitants of the locality, like the irrigation ditches in Reter v. Talent Irrigation District, supra note 1, or the urban piping of gas mentioned in McLane v. Northwest Natural Gas, supra, 255 Or at 330-331. Likewise, a location may sometimes be called “appropriate” because the dangerous activity is useful or necessary, and sometimes because it is less likely to *679 cause extreme harm in that location. 4 The second meaning clarifies but adds nothing to the initial equation of danger.

The greater divergence from the “factors” quoted in Nicolai v. Day, concerns the value of the dangerous activity to the community. In the present case, defendant and amici curiae press upon us the economic importance of the grass seed industry, which makes extensive use of field burning, and of the forest products industry, which is concerned about the potential implications for its practices of burning slash and debris. This consideration, however, has not been a factor in this court’s assessment of strict liability for abnormally dangerous activities. Instead, the court has looked to determinations and policies that may be found in legislative enactments.

There are at least two reasons not to judge civil liability for unintended harm by a court’s views of the utility or value of the harmful activity. One reason lies in the nature of the judgment. Utility and value often are subjective and controversial. They will be judged differently by those who profit from an activity and those who are endangered by it, and between one locality and another. The use of explosives to remove old buildings for a new highway or shopping center may be described as slum clearance or as the destruction of historic landmarks and neighborhoods. On a smaller scale, it may celebrate a traditional holiday which some may value more highly than either buildings or roads. Highly toxic materials may be necessary to the production of agricultural pesticides, or of drugs, or of chemical or bacteriological weapons, or of industrial products of all sorts; does liability for injury from their storage or movement depend on the utility of these products? Judges, like others, may differ about such values; they can hardly be described as conclusions of law.

To rely on the evidence of the market place may show rather different societal values from those probably contemplated by Dean Prosser and the Restatement. While *680 some small airplanes enhance the production of food crops, others perhaps earn a larger return flying passengers or stunt exhibitions at the county fair. Entrepreneurs may bring more money into the local economy by racing automobiles or driving them to deliberate destruction than by operating a public transit system with a comparable incidence of actual injuries. If high risk itself has market value, does this count against strict liability for a resulting calamity? The addition of this “factor” in the second Restatement was the subject of some doubt and criticism during the debate of § 520 in the American Law Institute. 5 Our cases have not required courts and counsel to enter upon such philosophical issues in deciding whether a defendant is strictly liable for harm from a hazardous activity. 6

The second reason why the value of a hazardous activity does not preclude strict liability for its consequences is that the conclusion does not follow from the premise. In the prior cases, the court did not question the economic value of blasting, cropdusting, or storing natural gas. In an action for damages, the question is not whether the activity threatens such harm that it should not be continued. 7 The question is who shall pay for harm that has been done. The loss has occurred. It is a cost of the activity whoever bears it. To say that when the activity has great economic value the cost should be borne by others is no more or léss logical than to say that when the costs of an activity are borne by others it gains in value. This, in effect, is postulated in the argument that the industry *681 which relies on field burning is highly valuable but could not survive the cost difference of insurance against strict liability instead of negligence.

Sometimes, moreover, the cost is borne by others engaged in the same or similar activity. That is true in this case, where plaintiffs and defendant farmed adjoining fields. The same can occur in cropdusting, in burning forest debris, or in the escape of stored water. If the accidentally impoverished neighbor is told that in the long run the losses will balance out, he may answer, like one economist, that in the long run we are all dead. 8 Society has other ways to lighten the burdens of costly but unavoidable accidents on a valued industry than to let them fall haphazardly on the industry’s neighbors.

That, at least, has been this court’s view of the common law in the absence of relevant legislation. We have already referred to the quotation in Bedell that one who engaged in the use of explosives, “useful though it be. . . becomes an insurer,” and “that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss.” 199 Or at 352, quoting Exner. The person conducting the activity can choose whether or not to chance the potentially costly consequences. If he also owned the adjoining property, he might choose not to take the risk of fire, or blasting, or aerial spraying of toxic chemicals, with any degree of care. The potential victim cannot make that choice. Thus, as Justice Holman wrote in McLane, “where one of two innocent persons must suffer, the loss should fall upon the one who created the risk causing the harm.” 255 Or at 330. Strict liability accompanies the decision to undertake the hazardous activity: “The element of fault, if it can be called that, lies in the deliberate choice by the defendant to inflict a high degree of risk upon his neighbor, even though utmost care is observed in so doing.” Loe v. Lenhardt, supra, 227 Or at 251.

In sum, the focus in our cases has been on assessing abnormal hazards by their potential for harm of exceptional magnitude or probability despite the utmost *682 care. This potential may, of course, differ with the place where the activity is conducted; but an activity is not otherwise immune from strict liability because it is “appropriate” in its place. If there is an appropriate location for aerial cropdusting, it is over open agricultural fields, as in Loe and Bella. As stated in Loe, however, “mere frequency of usage by specialists in a particular field [does not] determine whether or not the activity should pay its own way.” 227 Or at 251. A danger that is only ordinary in an appropriate location may be abnormal where it exposes others to an extraordinary risk or magnitude of harm, but an extraordinary risk does not become ordinary because it occurs in its own appropriate place.

The societal qualification, rather, is that a dangerous activity is not an abnormal hazard, even though its intrinsic dangers cannot be prevented, if it is a “common usage.” That term has been extended beyond its original meaning of widespread and accepted individual practice to embrace also essential service activities like the distribution of gas or electricity, see McLane, or irrigation water, as in Reter, though in the latter case there was the alternative ground that the court found small risk of serious harm. In other words, a dangerous activity is not extraordinarily so if nearly everyone routinely does it or expects to have it done for him.

Finally, the abnormally dangerous nature of an activity need not be proved by evidence if this danger is recognized by stringent legislative or administrative safety regulations, although it may be an issue what degree of danger a regulation recognizes. In Loe, the court noted that many states, including Oregon, strictly regulated the aerial application of herbicides or pesticides, concluding that “the dangerous character of aerial spraying has been recognized by those legislative assemblies which have given attention to the matter.” 227 Or at 253. Bella, supra, likewise relied on a statute for the specific conclusion that spraying with the herbicide 2,4-D was abnormally dangerous. 279 Or at 24-25.

II. Fire as an abnormal hazard.

The use of fire, of course, is the aboriginal “dangerous activity.” Its relation to the rule of Rylands v. Fletcher, however, is more complicated.

*683 It is an interesting question what the “common law of England” was in 1843, when this was adopted as the law in Oregon. 9 It should not be assumed that the common law demanded a showing of negligence to recover for losses from the spread of a fire intentionally set on another’s property. The common law decisions were to the contrary, although exactly what rule of liability they established is disputed. An early common law action for letting one’s fire escape and injure his neighbor is traced to the 1401 report of Beaulieu v. Finglam, Y.B. 2 Hen. IV. fo. 18, pi. 5. It applied equally to a fire set outdoors, for burning stubble in a field, as to fire in one’s house. 10

Wigmore treated this action as a form of absolute liability. 11 Winfield, upon more extensive investigation, disagreed, because the defendant was not liable if he showed that the fire was the act of a stranger, or an “act of God.” 12 A modern study of the question agrees that negligence in the modern sense of the term was not required:

“Once it was established that the fire was ignis suus [i.e., the defendant’s fire], and that it had spread, the defendant was strictly liable for consequent damage to the plaintiffs property. It was not necessary to show that the defendant had been ‘careless.’ ” 13

*684 In England, where Rylands v. Fletcher was decided soon after Oregon became a state, the doctrine of that case became another source of strict liability for escaping fife, in this case from a railway engine. Jones v. Festiniog Ry., (1868) L.R., 3 Q.B. 733. Thus the old common law action and that under Rylands v. Fletcher, though not identical, became a matter of choice and perhaps tended to merge. See Winfield on Torts § 144 at 608-10 (6th ed 1954), Fleming, The Law of Torts 336-337 (5th ed 1977). In Australia and New Zealand, agricultural burning under conditions perhaps more like Oregon’s than England’s, has been tested by the standards of Rylands v. Fletcher, making cases turn on the concept of natural or unnatural uses of fire. See Sutton, Liability for Escape of Fire, 34 N Z L J 87 (1958), reviewing the cases. 14

Meanwhile, in the states where strict liability under the Rylands doctrine was not adopted or developed, liability for fire damage was litigated under conventional negligence law. Many cases of fires set to clear land or for other agricultural purposes are included in an annotation that asserts “the general rule” that a person who sets a fire for a lawful purpose is not liable for damage on another’s property unless he was negligent in starting or in controlling the fire. Annot., Liability for Spread of Fire Purposely and Lawfully Kindled, 24 ALR2d 241, 254, 295 (1952). The results then hinge on whether the fire was set under unreasonably dangerous conditions or with inadequate precautions against its spread. The prevalence of negligence liability for fire damage, however, does not settle the issue when a state’s law includes strict liability for hazardous *685 activities under Rylands v. Fletcher or equivalent concepts. No prior decision has settled it in this state. 15 Liability for harm caused by the spread of an intentionally set fire therefore must be judged by the principles of the decisions reviewed above.

These principles do not .lead to strict liability for the use of fire as such. The use must be abnormally dangerous, creating an effectively uncontrollable danger of serious harm beyond the ordinary risks associated with common uses of fire that are readily avoided by due care. It appears that field burning fits this description. It differs from other domestic and industrial uses of fire, including the spark-throwing steam locomotives whose incendiary propensities were a classic cost of industrial progress, because it is used specifically for destruction. Any fire means the destruction of raw material by oxidation, with attendant dangers; but in field burning, as in using explosives and herbicides, the same destruction that poses the danger to the user’s neighbor is the user’s very purpose. That alone does not make every backyard burner an abnormally dangerous activity. It is a matter of scale as well as location. When fire reaches the magnitude of burning essentially the whole surface of a large area open to the winds, the possibility that it will spread beyond its intended bounds cannot be excluded with any practical degree of care. In the trial court, witnesses gave varying testimony reflecting their personal experiences and estimates whether escape of a fire beyond the field intended to be burned is a highly unusual or a relatively common occurrence. The local fire chief testified that it occurred in perhaps one fire in eight, and he did not attribute this high percentage to lack of care. This uncontrollable potential of spreading is in principle like that of the aerial chemical sprays in Loe and Bella, as the Court of Appeals concluded. 16

*686 Also, as in those-cases, the abnormal character of the danger is not negated because the field burning occurs in its appropriate location. Perhaps field burning is not much more exceptional in the location of defendant’s field than irrigation ditches were in the location involved in Reter, but that was equally true of crop dusting. Field burning is not a “common usage” in the sense that it is an ordinary activity that many people routinely expect to dp for themselves, like domestic fires, or to have done for them, like the distribution of water, gas, electricity and other common goods, as McLane suggests. Even in farming, field burning is not a generalized use, though widely employed for certain kinds of crops. It is an instance of the “frequency of usage by specialists in a particular field” which, according to Loe, does not determine “whether or not the activity should pay its way.” 227 Or at 251.

III. Statutory policies.

As already mentioned, a court need not determine whether an activity otherwise within the rule is exceptionally dangerous when legislators or their administrative delegates have recognized the danger by subjecting the activity to stringent safety regulations. Defendant and amici curiae make the opposite claim that statutory policy governing field burning precludes liability without fault for injuries caused by the burning.

Field burning legislation is found in ORS 468.450-468.495. ORS chapter 468 as a whole is concerned with pollution control. It assigns certain responsibilities for air pollution control to state and local administrative agencies, including the regulation and licensing of open field burning of grass and cereal grain crops. ORS 468.455 contains a legislative declaration that “limitation or bar of the practice at this time, without having found reasonable and economically feasible alternatives to the practice could seriously impair the public welfare.” The section, however, *687 indisputably refers to field burning as a source of pollution. It declares the “public policy” to control the inevitable pollution by “smoke management” and research, “consistent with ORS 468.280.” That section, in turn, states the general public policy to maintain air quality “as free from air pollution as is practicable, consistent with the overall public welfare of the state.” These policy declarations have nothing to do with fire danger. They permit a polluting activity to continue, as far as state law is concerned, but they contain nothing to relieve it of the costs of harm to others. They do not preclude strict liability for injuries caused by field burning when this otherwise would apply.

Nor does the field burner’s possession of the required permit preclude strict liability. Licenses, certificates, or permits are common devices in the regulation of dangerous activities, including the handling and use of explosives, dangerous gas, or chemical spraying involved in our prior cases of strict liability. See ORS 478.920(4) and 480.200 to 480.280 (explosives); ORS 480.432 to 480.436 (liquid petroleum gas); ORS 634.106 to 634.146 and 634.306 (pesticide operators and applicators). About the same argument, the court stated in McLane:

“We do not believe the fact that the state has authorized defendant to engage in the abnormally dangerous activity in question demonstrates any intention to predetermine where responsibility should lie in the case of a non-negligent miscarriage of the activity.”

255 Or at 336. 17 The court continued with the observation that compliance with safety regulations would not foreclose liability without fault, even if the regulations fixed the *688 standard of due care for liability based on negligence. Here, as in McLane, defendant’s activity was legal and conducted with governmental approval, but that approval does not predetermine civil responsibility in case of a non-negligent miscarriage of the activity.

Plaintiff, in turn, points to the extensive regulations that address the incendiary rather than the polluting propensities of fire to establish its hazardous character. We agree that these are the more pertinent laws to show how far lawmakers have treated open, outdoor fires as a source of exceptional risk. ORS chapters 476, 477, and 478 make extensive provisions for organizing and paying for the prevention, suppression, and investigation of fires. These are evidence of the importance that historically has been given to the communal defense against the dangers of fire generally, not of a determination that some uses of fire are exceptionally dangerous. Some statutes impose special obligations with respect to particular kinds or locations of fire. ORS chapter 477, for instance, is devoted to fire protection on forest, grazing, and rangeland and contains provisions for regulation, e.g. ORS 477.515, 477.575, 477.625, and liability for double damages for fire losses caused negligently, wilfully, or maliciously, ORS 477.090. The statutory regime for forest, grazing, and rangeland is not involved in this case, and there is no occasion here to examine its implications for tort liability. Three statutes not limited to such lands may, however, be relevant.

Plaintiff cites ORS 477.740, which imposes criminal liability for unlawfully setting on fire “any grass, grain, stubble or other material being grown on any lands within the state” or failing to control the spread of fire from one’s own land. The suggestion is not that the present defendant violated this statute but that the statute shows legislative recognition of the special danger of fires on open land.

Two statutes, ORS 478.960, and ORS 476.380, place open burning, including field burning, within and outside rural fire protection districts under special controls. Subsection (1) of each statute forbids such burning without first securing permission respectively from the fire chief or from county officials and complying with the directions of *689 the fire chief. ORS 478.960(2) directs the district fire chief to “prescribe conditions upon which permission is granted and which are necessary to be observed in setting the fire and preventing it from spreading and endangering life or property or endangering the air resources of this state.” The subsection also makes it the responsibility of the fire chief, deputy, or State Fire Marshal to deny permission for field burning, even when allowed by the Environmental Quality Commission, if the fire official thinks it necessary “to prevent danger to life or property from fire.” Subsection (3) holds the person starting the fire responsible for “providing adequate protection to prevent injury to the person or property of another,” and it prescribes that any escape of the fire or injury to the person or property of another “constitutes prima facie evidence that the burning was not safe.” ORS 476.380 makes similar provisions for property not within a rural fire protection district.

The statute does not explain the relevance of this “prima facie evidence that the burning was not safe.” One of the amici curiae suggests that it implies that a person starting the fire is liable only if “the burning was not safe,” and that this negates strict liability. A clause about civil liability, however, more, likely would have used a familiar word such as “negligent,” referring to the conduct of the burner, than “safe,” which refers to the burning. This fire obviously proved unsafe, though not for lack of care. A standard that burning be “safe” is equally compatible with either theory of liability. It appears that the clause was enacted with a view, not to civil liability, but to sanctions for violations of the section. It originally provided that “the escape of fire and injury to the property of another. . . shall be prima facie evidence that the burning was not safe and was in violation of this section.” ORS 478.960(2) (1955). This provision implies nothing about the standard for tort liability to the injured party in the absence of a violation. Moreover, in the later version governing open burning outside fire protection districts, ORS 476.380, the same provision is followed by the explicit statement that nothing in the section “(c) Relieves a person who has obtained permission to start a fire, or his agent, from legal liability for property damage resulting from the fire.”

*690 In adopting these statutes the legislature did not undertake to define or alter tort liability for property damage, any more than in adopting the regulations of crop dusting and chemical herbicides cited in Loe v. Lenhardt and Bella v. Aurora Air, Inc. As in those cases, what the statutes establish is legislative recognition that certain kinds of open fires pose an exceptional danger of spreading and causing injuries. Governments, of course, require precautions against many routine risks that fall short of the extraordinary or abnormally dangerous. If safety regulations and licensing or other permit requirements alone implied a finding of exceptional danger, strict liability would be the rule and negligence liability the exception in wide areas of contemporary life. Not all fires, though regulated in the interests of safety, are abnormally dangerous; moreover, even hazardous activities do not carry strict liability for resulting harm if they are common usage. Whether a regulatory scheme reflects recognition of extraordinary danger must be judged for each particular scheme.

We have described the exceptional controls imposed upon open field burning, with their requirement of individual permits in the light of daily conditions and of on-the-scene precautions to deal with a spread of the fire if it occurs. These statutory provisions reinforce the conclusion of the Court of Appeals that field burning fits this court’s criteria of an abnormally dangerous activity. The spread of the fire from defendant’s field to plaintiffs’ land therefore was a trespass making defendant liable for the damage done to their property.

The decision of the Court of Appeals is affirmed.

*553PRATT, Justice.

This is an appeal from a decree of the lower court sustaining a general demurrer to appellant’s amended complaint and entering judgment for the respondent.

The facts, as alleged in the amended complaint, are as follows: Appellant owns the Madsen Mink Farm in Sandy, Utah, using said farm to breed and raise mink for sale. The farm is located 100 yards north of respondent’s irrigation canal and, on May 5, 1941, respondent, in repairing its canal, blasted with explosives, causing vibrations and noises which frightened the mother mink and caused 108 of them to kill 230 of their “kittens” (offspring). The appellant further alleges that, by nature, habit and disposition all mink, when with and attending their young, are highly excitable and, when disturbed, will become terrified and kill their young. Appellant places a value of $25 each on said “kittens” and seeks to recover $5,750 as damages.

Respondent filed a general demurrer to the amended complaint, which demurrer was sustained and appellant given five days in which to amend.

Appellant failed to amend and judgment was entered for the respondent. It is from such judgment that this appeal is taken.

Respondent, in his brief, contends that, because the injury in the present case was consequential rather than immediate, the amended complaint does not state facts sufficient to constitute a cause of action in trespass. He further contends that the amended complaint did not state facts sufficient to constitute a cause of action in case.

It is conceded that the rule of absolute liability prevails when one uses explosives and the blasting of said explosives results in hurling of rock, earth or debris which causes injury to another. 22 Am. Jur., Explosions, Page 179, Paragraph 53; 25 C. J. 192. The weight of authority sustains the position that there is no distinction in liability for damage in nonconcussion and concussion cases. *554This majority rule, led by California, prevails in 14 jurisdictions.

The minority rule, led by New York, holds that negligence must be alleged in concussion cases. These jurisdictions do not concede liability in blasting cases where damage is caused by shock or air vibrations rather than the hurling of rock, earth or debris. This distinction is based upon the historical differences between the common-law actions of trespass and case. There is no practical difference between liability occasioned by blasting which projects rocks on another’s property or by creating a sudden vacuum and resultant concussion. 92 A. L. R. 742. Had the concussion in the instant case killed the kittens directly, without the intervention of the mother minks, the majority rule of liability in concussion cases would have been applicable, but the case at bar presents the additional element of the mother minks’ independent acts, threby raising a question of proximate causation. Query: Did the mother minks’ intervention break the chain of causation and therefore require an allegation of negligence?

Many years ago (1896) a Maine court held that the intervening act of an animal broke the chain of causation to such extent that blasting could not be considered the proximate cause of injury and negligence on the part of the blaster had to be proved. Wadsworth v. Marshall, 88 Me. 263, 34 A. 30, 32 L. R. A. 588. In the Wadsworth case, the plaintiff was riding along a public highway near which defendant was operating a quarry. He exploded a blast which frightened plaintiff’s horse and she (plaintiff) was injured. There was a Maine statute requiring persons engaged in blasting to give reasonable notice of their intention to blast to all persons in the vicinity of the blast. The trial court excluded testimony as to the viciousness and nervousness of plaintiff’s horse, proceeding upon the ground that defendant violated the statute by failing to give the required notice and therefore he was liable regardless of the character of the horse or any negligence of the plaintiff. The ap*555pellate court reversed the lower court’s decision, holding that it would be a harsh construction of the statute to hold that the negligence of the quarry-man in not giving notice subjected him to liability for damages largely, if not wholly, resulting from the negligence of the traveler in riding an unsuitable horse. The court ruled that “the established doctrine of contributory negligence, as a defense, applies to this class of actions.”

While the above ruling interjects an element — contributory negligence — which is absent in the present case, it impresses one with the thought that he who fires explosives is not liable for every occurrence following the explosion which has a semblance of connection to it. Jake’s horse might become so excited that he would run next door and kick a few ribs out of Cy’s jersey cow, but is such a thing to be anticipated from an explosion? Whether the cases are concussion or nonconcussion, the results chargeable to the nonnegligent user of explosives are those things ordinarily resulting from an explosion. Shock, air vibrations, thrown missiles are all illustrative of the anticipated results of explosives; they are physical as distinguished from mental in character. The famous Squib case does not mitigate what has been said in the preceding lines. That was a case where the mental reaction was to be anticipated as an instinctive matter of self-preservation. In the instant case, the killing of their kittens was not an act of self-preservation on the part of the mother mink but a peculiarity of disposition which was not within the realm of matters to be anticipated. Had a squib been thrown and suddenly picked up by a dog, in fun, and carried near another, it is ventured that we would not have had a famous Squib case, as such a result would not have been within the realm of anticipation.

We are of the opinion that the lower court properly sustained the demurrer.

Judgment affirmed. Costs to respondent.

*556MOFFAT, C. J., and LARSON and McDONOUGH, JJ., concur.

WOLFE, Justice

(concurring).

I concur. If actual tangible matter is projected by the blast on the property of another, it is held to be a trespass. One can sympathize with the view that if property is immediately injured by a force caused by a blast transmitted by concussion of air it is still a trespass. As stated in the opinion, there is a division of authority on that matter.

In the case of O’Neill v. San Pedro, Los Angeles & Salt Lake Railroad Company, 38 Utah 475, 114 P. 127, it was held that damage due to repeated vibrations over a long period of time must be chargeable in case, and negligence proved. Unless distinction can be made between a result caused by a series of recurring similar events and a result caused by one event, it would seem that the O’Neill case has committed this court to the view that a vibration transmitted through a solid medium acting on a building is not a trespass but calls for an action of trespass on the case. It would follow, therefore, that a force transmitted by a rarer medium would also call for action of trespass on the case. Realistically, there is a difference between a damage caused by continued vibrations of trains which are performing a necessary public service, and a damage caused by a single blast set off on the private property of another. It is such differences which make law not mainly the product of logic, but of experience, social necessity and distribution of the cost of consequences. Our common existence may require the law to hold that damage to property caused by unavoidable vibrations of passing trains is damnum absque injuria whilst to permit one owner, by a blast on his own property to shake down the house of another, requires a rule which recognizes that however free from negligence the first may be the second innocent person should not suffer. The very essence of fairness seems to suggest that if one, in order to obtain a certain type of use or enjoyment of his own *557property, is compelled to blast, he must, as part of the cost of such use or enjoyment, pay the damages he causes to his innocent neighbor. Logically a series of imperceptible injuries to a dwelling due to the periodic vibiration of trains over a long period of time is but the accumulated injuries inflicted by each of a series of trespasses. Law not following logic may say:

“The vibration of a train in itself is not dangerous like a blast from an explosion. Its single influence is imperceptible but the accumulated results may be injurious, but only if it can be shown that the accumulated results were the result of negligent construction or operation •can we give damages. Otherwise, the property owner must submit to the greater needs of society.”

Be that as it may, jurisdictions which hold that trespass lies where damage is directly and immediately caused by concussion arising from a blast on neighboring property cannot be said to hold that trespass lies for ultimate damage caused by an animal or a human who is affected by the ■concussions.

Scott v. Shephard, 1 Smith Leading Cases 337, 2 W. Bl. 892, 3 Wils. 403 (Squib Case), is not to the contrary. That was treated as a ricochetting Squib, the transfer by human hands being automatic. Distinctions based on the nature of the mental reaction may, in some cases, be too refined to be of practical use. We may say at least that where the reaction is purely reflex and automatic according to the Squib case the person so acting is as if an inanimate link in the chain of causation and the action lies in trespass. Where the animal or person commits an injury concededly acting in response to certain stimuli, but not purely automatically, which were the result of forces set in motion by the defendant, the action, if any, lies in case.

Being an action in case, negligence must be alleged and proved. We do not need to determine whether if negligence had been alleged a cause of action would have been stated under the circumstances of this case. A discussion of the “range of apprehension” as expressed in Palsgraf v. Long *558 Island R. Co., 248 N. Y. 339, 162, N. E. 99, 100, 59 A. L. R. 1253, is contained in Barrus v. Western Union Telegraph Co., 90 Utah 391, 62 P. 2d 113. I conceive of the intermediation of the reflexes of the mother mink as serving in legal concept a dual purpose. Even where it is held that injury due to concussion transmitted by air is a trespass where the injury is direct or immediate, a result arrived at through the concussion action on the mind of the mother mink would not be trespass; hence, negligence would have to be alleged. If alleged it would then be time to determine whether it. was within the range of apprehensibility.

ROGOSHESKE, Justice.

Plaintiff Terry Ryman was bitten by a dog owned by defendant Jack Alt 1 while Alt was holding the dog on a chain. Terry and her father, plaintiff Harry Ryman, brought this action for damages. The case was submitted to the jury by special verdict and under instructions based upon the elements of the common-law scienter action requiring the jury to find that the dog had a vicious propensity known to Alt in order for plaintiffs to recover. Upon the jury finding of no vicious propensity, judgment was ordered for defendant. Plaintiffs appeal from a denial of their post-trial motion for a new trial and from the order for judgment, 2 alleging error in the trial court’s instructions to the jury and seeking a new trial on a negligence theory pleaded in the complaint as well as on the scienter theory submitted to the jury. We hold that the trial court’s instruction that a prior injury inflicted while the dog was at play could not of itself be evidence of a vicious propensity was erroneous and prejudicial. Accordingly, we reverse and remand for a new trial on all issues of liability raised in the pleadings.

*506 The incident which gave rise to plaintiffs’ claim occurred December 14, 1974, when Terry Ryman was 16 years old. She and her friend, Debra Eide, and Debra’s husband, David, were driving back to St. Paul from a visit near Red Wing, Minnesota, when they stopped at the rural mobile home of Alt, Debra’s father. Alt had just driven his car into his driveway ahead of them. He talked with Debra in the driveway for some time and then, according to conflicting testimony, invited either Debra alone or Debra, David, and Terry to come into his house.

When David and Terry got out of the car, Alt walked over and held his St. Bernard dog, which was chained near the driveway. A “Beware of Dog” sign was posted near the dog. The St. Bernard, standing on its hind legs, was about 4 feet tall and weighed about 85 pounds. David and Debra testified that Alt invited all of them to pet the St. Bernard, saying that it would not hurt or bite anyone and that he had a good grip on it so that it could not get loose. Alt denied that he invited anyone to pet the dog. Only Terry approached the dog. As she reached out to pet it, the dog leaped at her and broke loose from Alt’s grip. It bit Terry’s upper lip, tearing open the flesh and removing a portion of the lip. According to David’s testimony, it then bit Alt on the hand. Debra testified that Alt “started cussing at the dog * * * [and] then he kicked it” and said, “I should have gotten rid of this dog because it bit me once before.”

Terry was treated at Regina Memorial Hospital in Hastings, Minnesota, and then transferred to St. Paul-Ramsey Medical Center. Three plastic surgeries were later performed on her upper lip. As a result of the dog bite, Terry has a permanent facial deformity resembling a harelip.

Plaintiffs introduced evidence which included hospital records showing that on August 18, 1973, Alt had been treated and received stitches for two ¾-inch lacerations to his forearm caused by a bite from his dog. Alt testified that the lacerations occurred when he was playing with the dog with his arm in the dog’s mouth and suddenly jerked his arm out of the • dog’s mouth. He testified that other than this incident the dog had never bitten anyone before.

The complaint alleged negligence by Alt. Counsel for both parties, however, agreed to a special verdict form and instructions submitting the case to the jury only on the common-law scienter rule requiring proof that the dog had a vicious propensity when it bit Terry and that Alt knew of the dog’s vicious propensity. 3 Plaintiffs requested no instructions on simple negligence. At defendant’s request, the trial court gave the following instruction:

“ * * * [I]f you find that the defendant’s dog when defendant was first bitten in August 1973 was provoked or excited by play the incident is not of itself evidence of viciousness in the animal.” (Italics supplied.)

Plaintiffs objected to the instruction and argued that, if given, the instruction should have read “is not necessarily evidence” rather than “is not of itself evidence.” The jury found that the dog had no vicious propensity on or before the date it bit Terry and that Terry sustained damages in the amount of $45,000. 4 Judgment was accordingly ordered for defendant, plaintiffs’ motion for a new trial was denied, and plaintiffs appeal.

Both parties acknowledge that under a common-law scienter action, long approved and applied in Minnesota, a person injured by a domestic animal such as a dog may recover from the animal’s keeper for injuries inflicted by the animal only by proving that (1) the animal had a vicious propensity, and (2) the animal’s keeper had notice of the vicious propensity. Matson v. *507 Kivimaki, 294 Minn. 140, 200 N.W.2d 164 (1972) (dog); Clark v. Brings, 284 Minn. 73, 169 N.W.2d 407 (1969) (cat). 5 Although the parties have agreed that a common-law scienter action was proper in this case, 6 they disagree as to what evidence is sufficient under the scienter theory to, prove that the dog had a vicious propensity.

Plaintiffs argue that the instruction to the effect that a prior injury inflicted while the dog was at play was not of itself evidence of viciousness was an erroneous statement of the law. We agree. We have in some cases upheld directed verdicts or ordered judgment for the animal owner where the only evidence of prior viciousness was proof that the animal had previously inflicted minor scratches or “nips” while at play. Judd v. Zupon, 297 Minn. 38, 209 N.W.2d 423 (1973); Matson v. Kivimaki, supra; Clark v. Brings, supra; Maron v. Marciniak, 165 Minn. 156, 205 N.W. 894 (1925). We have never held, however, that a previous serious injury could not of itself present evidence of viciousness as a matter of law because it was inflicted while the dog was at play. As we stated in Clark v. Brings, 284 Minn. 73, 82, 169 N.W.2d 407, 413:

“ * * * We would agree that it is the mere dangerousness of an animal’s character, and not any intentional malevolence, which must be proved to render its owner liable — that the ‘propensity is vicious if it tends to harm, whether manifested in play or in anger, or in some outbreak of untrained nature which, from want of better understanding, must remain unclassified.’ ” (Italics supplied.)

The correct view of the law thus is that any serious prior injury or behavior by the animal tending to cause harm can of itself be sufficient evidence of a vicious or dangerous propensity, whether manifested in play or in anger. The common-law scienter action balances the rights of domestic animal owners and persons who may be injured by holding the keeper of an animal known to be dangerous responsible for injuries inflicted by the animal. Anderson v. Anderson, 259 Minn. 412, 107 N.W.2d 647 (1961); Clark v. Brings, supra; Matson v. Kivimaki, supra. It is the dangerousness of the animal that is at issue; whether the animal is dangerous when at play or when not at play is of little consequence to the purpose of the rule. Once a prior injury or behavior by the animal serious enough to present a jury question of dangerousness is proved, the fact that the animal may have inflicted the previous injury while at play is only one evidentiary factor to be evaluated by the jury in determining whether the animal has been shown to have a vicious propensity.

The trial court’s instructions directed the jury’s attention away from the seriousness of the wounds previously inflicted by defendant’s St. Bernard and away from other evidence which the jury could properly have considered in determining whether the dog had a vicious or dangerous propensity. In so doing, the instruction was argumentative, stating what would properly have been a part of defense counsel’s argument to the jury. The instruction given made the entire question of viciousness turn upon whether the dog was playing with defendant when it inflicted the lacerations to his forearm. It required the jury to find that the dog was not at play when it bit Alt in order to consider the previous bite as evidence of dangerousness. As such, we hold that the instruction was an erroneous statement of the law and its impact on the weight to be given the previous bite and other evidence relevant to the issue was prejudicial to plaintiffs, requiring a new trial limited to the issue of liability. 7

*508 Plaintiffs also specifically request this court to rule that upon retrial they may recover for the injuries inflicted upon Terry by Alt’s dog by proving Alt was negligent in failing to restrain the dog after inviting Terry to pet it. Negligence, they argue, should be a sufficient basis for recovery without the need to establish that the animal had a vicious propensity known to the animal’s owner.

Contrary to the apparent, but erroneous, assumption of plaintiffs, the scienter action has never been held the exclusive basis of recovery for injuries inflicted by a domestic animal in Minnesota. On several occasions, we have recognized a cause of action for injuries inflicted by a domestic animal based entirely upon the negligence of the animal’s owner or keeper. See, e. g., Rosenthal v. Hill Top Riding Academy, Inc., 261 Minn. 88, 110 N.W.2d 854 (1961); Lee v. Seekins, 208 Minn. 546, 294 N.W. 842 (1940) (negligence claim recognized although recovery denied); Wedel v. Johnson, 196 Minn. 170, 264 N.W. 689 (1936). Cf. Harris v. Breezy Point Lodge, Inc., 238 Minn. 322, 56 N.W.2d 655 (1953); Lane v. Minnesota State Agricultural Soc., 62 Minn. 175, 64 N.W. 382 (1895). See, also, McAbee v. Daniel, 60 Tenn.App. 239, 445 S.W.2d 917 (1968).

A plaintiff who believes his proof may be adequate to establish negligence by the animal’s keeper may also proceed under the common-law scienter theory. The scienter action is not based on negligence; once the animal’s dangerousness and the keeper’s scienter are proved, liability follows unless the person injured voluntarily and knowingly assumed the risk of injury, Anderson v. Anderson, supra; Clark v. Brings, supra; Matson v. Kivimaki, supra. The gravamen of the tort for which recovery is allowed is simply the keeping of an animal known to be vicious. Anderson v. Anderson, supra. Scienter actions for injuries by domestic animals seem more numerous than negligence actions, perhaps because many such injuries occur while the animal’s keeper is not present and proof of negligence may be difficult.

Plaintiffs here appropriately pleaded negligence. If their proof is adequate to show Alt was negligent, they may recover without showing viciousness of the dog and scienter. Conversely, recovery may be had absent proof of negligence by showing that the dog had a vicious propensity known to Alt. The case is remanded for retrial of all controverted issues of liability under appropriate instructions in accordance with this opinion.

Reversed and remanded.

OPINION OF THE COURT

Smith, J.

We hold that the rule of Bard v Jahnke (6 NY3d 592 [2006]) does not bar a suit for negligence when a farm animal has been allowed to stray from the property where it is kept.

Karen Hastings was injured when the van she was driving hit a cow on a public road. The cow had been kept on property owned by Laurier Sauve, and the cow itself was owned by either Albert Williams or William Delarm. There was evidence that the fence separating Sauve’s property from the road was overgrown and in bad repair.

*125Hastings and her husband brought this personal injury action against Sauve, Williams and Delarm. Supreme Court granted summary judgment motions by Sauve and Delarm. The Appellate Division affirmed as to those defendants, and granted summary judgment as to Williams also, citing Bard and other cases for the proposition that “injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence” (Hastings v Sauve, 94 AD3d 1171, 1172 [3d Dept 2012] [internal quotation marks omitted]). The Appellate Division expressed its “discomfort with this rule of law as it applies to these facts—and with this result” (id. at 1173), and later granted plaintiffs leave to appeal to this Court. We now hold that the rule of Bard is inapplicable to a case of this kind, and reverse the Appellate Division’s order.

In Bard, we denied recovery to a plaintiff who was attacked by a bull while working in the barn where the bull was kept. Noting that the bull “had never attacked any farm animal or human being before,” we declined to “dilute our traditional rule” that a plaintiff in such a case must show that defendant had knowledge of the animal’s “vicious propensities” (6 NY3d at 597-599). We made clear that by “vicious propensities” we meant any behavior that “reflects a proclivity to act in a way that puts others at risk of harm” (id. at 597, quoting Collier v Zambito, 1 NY3d 444, 447 [2004]). We have followed Bard in two more recent cases involving plaintiffs who were attacked or threatened by dogs (Petrone v Fernandez, 12 NY3d 546 [2009]; Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787 [2008]).

This case, unlike Collier, Bard, Bernstein and Petrone, does not involve aggressive or threatening behavior by any animal. The claim here is fundamentally distinct from the claim made in Bard and similar cases: It is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal. To apply the rule of Bard—that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 NY3d at 599)—in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.

We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in *126Agriculture and Markets Law § 108 (7)—is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.

In this case, while a number of important facts are disputed, the record read most favorably to plaintiffs would support a finding that any or all of the three defendants were negligent in allowing the cow to enter the roadway. Summary judgment in defendants’ favor should therefore not have been granted.

Accordingly, the order of the Appellate Division should be reversed with costs and defendants’ motions for summary judgment denied. The certified question is not necessary and should not be answered.

Chief Judge Lippman and Judges Graffeo, Read, Pigott and Rivera concur.

Order reversed, with costs, defendants’ motions for summary judgment denied, and certified question not answered on the ground that it is unnecessary.

Mr. Chief Justice Day

delivered the opinion of the Court.

The parties appear here as in the trial court and will be so referred to or by name.

The plaintiff was a four-year-old child who, through his mother as next friend, brought suit against the de*490fendants. He alleged defendants owned and wrongfully harbored a coyote, a wild animal of vicious propensities, and that on May 22, 1960, the child was attacked and bitten by the coyote and seriously injured.

Trial to a jury resulted in a verdict and judgment for defendants, from which the plaintiff seeks reversal by writ of error.

In the trial of the case the testimony was not in any material aspect disputed. The Ottos admitted ownership of the animal for a period of about two years. They had fitted it with a collar and kept it on a chain about 15 ft. long. At the time of the attack on plaintiff, the coyote had recently been delivered of a litter and some of her puppies were still with her. Mr. Otto admitted that he gave one of the puppies to David to pet in the presence of the coyote.

Although the Ottos denied that they knew the coyote was vicious, they both testified that it was their custom not to let children approach it to pet it unless in their presence. Mrs. Otto testified that all of the neighborhood children had been warned not to go close to the coyote unless she or her husband were present. Mrs. Otto further testified that she worried about it and kept a very strong chain on the animal, and she did not tell the children that the coyote might hurt them but just warned the children to stay away unless she or her husband were present. Both were in the house and knew that David had been over for lunch with the Otto children and that all of the children were in the backyard and that David had a puppy to pet.

That the coyote attacked the boy is not disputed. An eye witness testified as to the viciousness of the attack, and the medical testimony established that lacerations of the forehead, eyelid, face, ears, and back of head were the result of the bites of the coyote. The injuries were quite extensive, leaving scars requiring at least two operations by a plastic surgeon.

The Ottos defended on the theory of the contributory *491negligence of this four-year-old. child and on the basis that they had no prior knowledge of the viciousness of the animal.

A motion by plaintiff for a directed verdict in his favor was denied, the court ruling that the question of negligence of defendants in keeping the wild animal was a question for the jury. The court also ruled that the matter of contributory negligence was a legitimate defense to be submited to the jury, and gave an instruction thereon.

Several grounds are assigned by plaintiff for reversal, but in view of our conclusion only one need be considered: Whether the denial of plaintiff’s motion for directed verdict and refusal to submit the cause to the jury on the question of damages alone was error.

The law is virtually universal that one who harbors a wild animal, which by its very nature is vicious and unpredictable, does so at his peril, and liability for injuries inflicted by such animal is absolute. The rule is well stated in 2 Am. Jur. 689, at page 725, as follows:

§43. In General. — The owner of animals ferae naturae or of beasts of a dangerous or vicious class or species, such as lions, tigers, or bears, is, as a general rule, liable under all circumstances for injuries done by them. This rule of liability is predicated upon the wrongful and unjustifiable conduct of the owner in keeping an animal of a vicious, and therefore dangerous nature, and it is not necessary to prove that he had knowledge of the vicious nature of a wild animal causing injury, as he is conclusively presumed to have had such knowledge. Although the owner had no particular notice that such an animal ever did any such mischief before the injury complained of, he is liable. If such an animal is not securely confined, it is plainly a public nuisance, and security must be assured under all circumstances. Since the gravamen of the action, in such cases, is the keeping of the animal, negligence is not, strictly speaking, an element of the owner’s liability. However, there is, perhaps, a pre*492sumption juris et de jure of negligence based upon the keeping, and in that sense only an action would rest upon negligence. Therefore, while any person has an undoubted right to keep a wild animal, and no one has a right to interfere with him in so doing, as a result thereof, he assumes the obligations of an insurer with respect thereto to the public generally. A person who keeps an animal ferae naturae keeps it at his peril; and if he loses control of it and it does damage, he is responsible.” (Emphasis supplied.)

In Colorado, by C.R.S. ’53, 62-6-2, a coyote has been defined as a predatory animal. There is little doubt that it is in fact a wild animal and that it has vicious propensities. The court recognized the rule of law by instructing the jury that the coyote “is a wild animal, under the law, and presumed to be vicious and that proof of knowledge on the part of the defendants was not required.” This is the law and is for the court, and there was nothing for the jury to determine except damages.

One of the defendants, Christeen Edstrom, was made a defendant because she was the landlord from whom the Ottos rented the premises in which they lived. Under what theory she may be held to be responsible is not apparent. The court dismissed the action as to her and that judgment was correct and is affirmed.

The judgment as to the Ottos is reversed and the cause remanded to the trial court with directions to grant a new trial on the issue of damages only.

Opinion

SONENSHINE, J.

Steven Rosenbloom appeals from a summary judgment entered in favor of Hanour Corporation, doing business as, the Shark Club (the Club), in his personal injury action.

I

Reef Systems, Inc. (Reef) built and maintained a shark aquarium for the Club. After a shark outgrew its tank, the Club hired Reef to move it. Richard *1479 Barbosa, a Reef principal, brought along his employee, Rosenbloom, to help with the endeavor. Barbosa told Rosenbloom to drain the aquarium. Once this was completed, Barbosa directed Rosenbloom to take off his shoes, enter the tank and grab the shark by its tail as Barbosa held its head. Rosenbloom complied, and as the two began lifting the shark, it suddenly thrashed about. Barbosa let go and the shark spun around, biting Rosenbloom’s arm.

Rosenbloom filed the underlying suit alleging negligence and strict liability; The Club moved for summary judgment, maintaining Rosenbloom’s causes of action were barred under the assumption of the risk doctrine. Rosenbloom requested a continuance, claiming he needed time to take the scheduled depositions of two critical experts who, Rosenbloom claimed, would reveal triable issues of fact necessary to defeat the Club’s motion. The court denied Rosenbloom’s request and granted the summary judgment motion. Thereafter, the court denied Rosenbloom’s Code of Civil Procedure section 1008 petition for reconsideration.

II

As a general rule, strict liability is imposed upon one who keeps a naturally dangerous animal. (BAJI No. 6.65) Ownership of a human-eating shark would certainly qualify, 1 but liability is not absolute. (See Milwaukee Electric Tool Corp. v. Superior Court (1993) 15 Cal.App.4th 547, 561 [19 Cal.Rptr.2d 24].) The owner of a naturally dangerous animal may be excused from the usual duty of care: “In cases involving ‘primary assumption of risk’—where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury—the doctrine . . . operate[s] as a complete bar to the plaintiff’s recovery.” (Knight v. Jewett (1992) 3 Cal.4th 296, 314-315 [11 Cal.Rptr.2d 2, 834 P.2d 696],) 2

Cohen v. McIntyre (1993) 16 Cal.App.4th 650 [20 Cal.Rptr.2d 143] is instructive. There a dog bit the veterinarian who was treating it. The court determined the veterinarian’s claims against the dog’s owner were barred *1480 under the doctrine of assumption of the risk. The court first reviewed application of the primary assumption of the risk doctrine in cases involving firefighters. It noted in those cases courts held a person who negligently starts a fire is not liable for an injury sustained by a firefighter who is called to extinguish the blaze. It explained this “firefighter’s rule” is based on the rationale no duty is owed to protect the firefighter from the very danger that he or she is employed to confront. (Id. at p. 654)

The Cohen court decided the rule had correctly been extended “to veterinarians and their assistants who are bitten while an animal under their control is receiving care and treatment [i.e., the veterinarian’s rule].” (Cohen v. McIntyre, supra, 16 Cal.App.4th at pp. 654-655.) “The risk of being attacked or bitten in the course of veterinary treatment is an occupational hazard which veterinarians accept by undertaking their employment and are in the best position to guard against by taking the necessary precautions.” (Id. at p. 655, relying on Nelson v. Hall (1985) 165 Cal.App.3d 709 [211 Cal.Rptr. 668] [veterinary assistant bitten while holding dog before operation].) 3

The court then held, “[I]t is apparent that this case falls within the ‘primary’ category of assumption of the risk. . . . [The] . . . veterinarian^ was injured during the course of treating an animal under his control, an activity for which he was employed and compensated and one in which the risk of being attacked and bitten is well known. Thus, this is a classic situation where a defendant’s ordinary duty of care is negated due to the nature of the activity and the relationship of the defendant to the plaintiff.” (Cohen v. McIntyre, supra, 16 Cal.App.4th at p. 655, fn. omitted, original italics.) In other words, the veterinarian, like the firefighter, cannot recover for injures arising out of the very conditions he or she was hired to confront. The rationale is persuasive in this case.

The Club recognized a certain expertise was necessary for the dangerous task of handling a shark. Accordingly, it hired Reef, a known expert in the field, to do the work. 4 Certainly shark bites were Reef’s occupational hazard. And like the firefighter and veterinarian, no duty is owed to protect the shark *1481 handler from the very danger that he or she was employed to 5 Under the circumstances, the Club is not liable as a matter of law. 6

The judgment is affirmed. The Club shall recover its costs on appeal.

Wallin, Acting P. J., and Rylaarsdam, J., concurred.