dissenting.
I disagree with the majority’s conclusion that defendant’s activity was ultrahazardous. Until the majority opinion reaches its final two paragraphs, its reasoning seems to lead to the opposite conclusion. The majority then suddenly declares that the question in this case is answered by previous decisions holding different activity to be ultrahazardous. In my view, the majority’s equation of crop dusting and field burning is a leap of logic and not a sound analogy. More fundamentally, I do not accept the majority’s premise that the issue before us can be resolved by analogy rather than analysis.
The majority states no reasons why the aerial spraying activities considered in Loe et ux v. Lenhard et al, 227 Or 242, 362 P2d 312 (1961), and Bella v. Aurora Air, Inc., 279 Or 13, 566 P2d 489 (1977), were so similar to this defendant’s activity that it is unnecessary to make an independent assessment of whether the field burning here was ultrahazardous under the tests articulated in Bella v. Aurora Air, Inc., supra, Nicolai v. Day, 264 Or 354, 506 P2d 483 (1973), and McLane v. Northwest Natural Gas, 255 Or 324, 467 P2d 635 (1970).
Although there are similarities between the two activities, there are material differences which are significant in the ultrahazardousness analysis. The principal similarity is that both are recognized agricultural activities designed to increase crop yields. Both involve risks of harm if the elements of the practice escape the bounds of the intended application. However, the differences are more significant than the similarities in applying the Supreme Court’s tests as set out in the majority opinion.
As the court noted in Lenhard,
“* * * the damage which resulted [from aerial spraying] was within the scope of the risk that droplets of spray cast into the air could, and probably would, drift onto the adjoining field. * * *” 227 Or at 254. (Emphasis added.)
That is a recognition of the fact that once the spray is released from the aircraft, it is beyond the control of the pilot or landowner. Consequently, the risk that a spray will escape its intended application is substantial. Conversely, as the *20evidence here indicates, the risk that a fire intentionally lighted will escape from the field being burned is substantially reduced by ordinary precautions. Defendant followed the common practice of plowing a strip of land around the perimeters of his field and wetting down the fence line between his property and adjoining farm lands. In addition he enlisted the aid of a number of persons with fire fighting equipment to help contain the fire and extinguish any unintended blaze. The common precautions of the kind taken by defendant substantially reduce the risk that field burning fires will escape onto adjoining property. Whether an activity which is alleged to be ultrahazardous can be controlled by ordinary or extraordinary precautions is part of the relevant analysis. As the Supreme Court observed in Lenhard:
“* * * [T]he activity was one capable of inflicting damage upon neighboring crops notwithstanding the exercise of the utmost care by the applicator. * * *” 227 Or at 254. (Emphasis added.)
Aerial spraying is an ultrahazardous activity in part because there is a substantial risk that the spray will stray to neighboring property despite the exercise of the utmost care.
As indicated in the fire chiefs testimony relied on by the majority, the use of fire control equipment not only reduces the likelihood of the fire escaping but also decreases the likelihood of grave harm in the event of escape. The use of these techniques makes a quick response to escaped fires possible; conversely, the grave harm to neighboring crops from aerial spraying described in Lenhard and Bella was sustained on contact, and the damage was immediate and inevitable.
The express basis for the holding of ultrahazardousness in Bella was that the particular spray chemical had been legislatively declared to be dangerous. 279 Or at 24-25. Similarly, in Lenhard, the court stated that “[t]he high degree of danger inherent in the spraying of agricultural chemicals by aircraft has been the subject matter of considerable legislative attention.” 227 Or at 252. By contrast, open field burning has been declared to be a pollution source, but it has not been legislatively declared to be an extreme fire hazard to persons or property. And, as the majority notes, ORS 468.455 embodies a legislative recognition of the present economic necessity of the practice of field burning.
*21The differences between aerial spraying and field burning show that the majority’s attempt to decide whether the latter is ultrahazardous by a simple parity of reasoning with the cases holding the former to be ultrahazardous does not work. The differences between the activities also demonstrate that field burning survives the Supreme Court’s specific tests for determining ultrahazardousness, while aerial spraying fails those tests. In properly conducted field burning operations, as compared with aerial spraying, the degree of risk of any harm is less, the potential harm is less likely to be grave, and the possibility that harm can be eliminated or reduced by the exercise of reasonable care is substantially higher. Moreover, the value of field burning to the communities where it is practiced has been legislatively recognized; by contrast, according to Bella and Lenhard, the legislation relevant to the aerial spraying activities in question there consisted of statutes declaring that the activities created a danger of the kind of harm which gave rise to those actions.
Because the majority rests its decision solely on the putative analogy between field burning and a different activity, it fails to apply to field burning the tests the Supreme Court has established for determining ultrahazardousness. For the stated reasons, the conclusion that field burning is not ultrahazardous under those tests is strongly supported by analyzing the differences between field burning and the activity to which the majority mistakenly equates it.
The majority’s decision-by-analogy approach also causes it to overlook the legal significance of certain relevant facts it recites. The majority states that
«* * * fjgjd burning is a matter of common practice in and is appropriate to the locality where these events occurred. The activity is an intrinsic part of an agricultural business widely practiced in that locality. The present economic value of the activity to the community has been legislatively recognized. * * *” 55 Or App at 17.
As the majority also notes, at 55 Or App 15, the Supreme Court emphasized in McLane v. Northwest Natural Gas, supra, that whether an activity is ultrahazardous must be considered in light of “the locality in which it is carried on.” 255 Or at 328. In so holding, the court expressly repudiated language indicating that locality is not relevant to the determination of ultrahazardousness in Lenhard and in a second case on which *22the majority relies, Bedell et ux v. Goulter et al, 199 Or 344, 261 P2d 842 (1953).
I can find no basis in this record for concluding that defendant’s activity was ultrahazardous under the six-factor test adopted by the court in Nicolai v. Day, supra, or under the alternatively-worded tests of Bella v. Aurora Air, Inc., supra, and McLane v. Northwest Natural Gas, supra. Neither does the majority.
I also disagree with the majority’s decision for another reason. The majority states:
“The evidence was strong that the fire on defendant’s property was the source of the fire on plaintiffs’ land. It is not clear to us, however, that the evidence was such that the causation question should have been taken from the jury. Because defendant does not argue that the trial court’s denial of plaintiffs’ motion for a directed verdict should be affirmed, without more, on the ground that causation was a jury question, we do not address that issue.” 55 Or App 14, n 1.
The issue in this case is whether plaintiffs’ motion for a directed verdict was properly denied. We are required to uphold the denial of the directed verdict if there is any basis to support the trial court’s ruling. If there was a jury question as to whether the fire on defendant’s field was the cause of the fire on plaintiffs’ land, it was not error to deny the motion. The fire took place on a hot summer day in the vicinity of a freeway. None of the witnesses had actual knowledge that the fire moved from one field to the next, although most of the witnesses assumed that that occurred. In my view, the evidence of causation was not such that the issue should have been taken from the jury.
I respectfully dissent.
Warden and Van Hoomissen, JJ., join in this dissent.