(dissenting) — The majority holds that the Department of Natural Resources, in carrying out its statewide fire fighting statutory duties in fighting over 80 lightning-caused fires, including 7 project fires, with only 700 men, had a statutory duty to give priority to fight the fire on Barker Mountain first as it is owned by the State. The majority affirms a judgment for over $2,600,000 in damages because the State breached its alleged landowner duty by not first putting out the fire on Barker Mountain.
The majority on page 280 assumes its whole case stating:
We necessarily assume, because it is now beyond challenge, that there was sufficient evidence that DNR was negligent in allowing the escape of fire from its land. Further, we also make the critical assumption that the jury was properly instructed on the duties which DNR had and which it breached.
There is no justification for such assumptions as such assumptions are contrary to the true facts.
The majority through its analysis finds that the liability of the State as a landowner was presented to the jury, and the jury was instructed as to the liability of the State as a private landowner. This is totally false. The only issue submitted to the jury was whether or not DNR had a duty as a fire fighting organization to fight this fire.
The majority opinion is also sprinkled with statements that DNR admits negligence. This is entirely false — it only admits negligence if the public duty doctrine doesn't apply.
The only issue here is whether or not the State, in performing its statewide fire fighting duties, owes an individual duty to the plaintiffs, rather than a public duty to the citizens in general.
The plaintiff landowners pleaded a landowner cause of action in their complaint, and the trial judge, on the State's preliminary motion for summary judgment, ruled against the plaintiffs and held that the State owed no individual duty to private landowners. This is evidenced by the trial judge's statement at the proceedings:
[the court] [would] grant the Partial Summary Judgment on the argument that the State owed no private landowner duty, but was functioning and acting in performance of its general *291duty to the State as a whole and therefore its liability, if any, came under whether or not the public duty doctrine exceptions applied.
(Italics mine.) Report of Proceedings, at 4 (Apr. 7, 1987).
The trial judge's declarations as to how the jury was instructed was corroborated by trial counsel at the time of oral argument before this court.2 The case went to trial only on the issue of the State's performance of its general duty to fight fires and whether any public duty doctrine exceptions existed, not on the duty of the State as a private landowner.
Thus the trial judge, in the motion for summary judgment, ruled that the State owed no private landowner duty, *292but was functioning in performance of its general duty to the public. And therefore, its liability, if any, came under whether or not the public duty doctrine exceptions applied. The plaintiffs abided by such decision and did not appeal this ruling. However, after the trial and on a motion for n.o.v. by the State the trial judge reversed himself with the following statement:
DNR's conduct should be governed by whether it was negligent in allocating resources and the manner in which it responded to the fire the same as any other private landowner and not necessarily whether or not the fire started on its property or elsewhere then spread across its property.
Trial judge's oral decision, at 13 (June 12, 1987).
It was too late for the trial judge to make such statements as the trial went to the jury on his original ruling that the State owed no private landowner duty, but was acting in performance of its general duty to the people of the State as a whole. The State's liability, if any, can only arise on an exception to the public duty doctrine.
Additional Facts
From the State's viewpoint, I believe it would be helpful to restate some of the pertinent facts.
The responsibility of fighting forest fires has been charged by the Legislature, to the Department of Natural Resources and its predecessor, the Department of Conservation and Development, since the early years of statehood. See RCW Title 76. DNR is responsible for fighting fires on forest lands and fires which threaten forest lands. RCW 76.04.750.3 In total, DNR provides fire protection and suppression services on over 12 million acres of state and private forest lands.
During the summer of 1985, DNR was extremely busy protecting the forest lands from fires. The entire state was dry. Records were set for low humidities and rainfall at a *293number of state stations. Prior to the subject fire, seven project fires caused by lightning4 erupted throughout the state. In a typical summer, the State averages four or five project fires.
On Tuesday, August 27, 1985, DNR was engaged in fighting a project fire 15 miles northwest of Spokane called the Stoney Mountain fire. Over 200 fire fighters and 35 pump trucks were in action. That evening a lightning storm moved into northeastern Washington. Lightning strikes were spread over several counties igniting approximately 80 fires. One of these fires was the Barker Mountain fire, the subject of this case, which occurred in the Highlands District of the Northeast Area.
The Northeast Area covers all of Okanogan, Ferry, Stevens, Pend Oreille and Spokane Counties and one-half of Lincoln County. The Highlands District covers major parts of Okanogan and Ferry Counties, an area of approximately 1,200 square miles.
The first reported fire from this lightning storm was at 1:30 a.m. on Wednesday, August 28, 1985. By 6 a.m., there were 40 reported fires. By Wednesday, at midnight, there were 8 project fires and 82 confirmed smaller fires. Within a couple of days from the initial lightning storm, approximately 95 percent of the State's organized fire fighting forces or approximately 700 fire fighters were committed to fires in northeastern Washington.
Witnesses for DNR testified that DNR did not receive its first report of the Barker Mountain fire until approximately 12:15 p.m., Wednesday. Upon receiving this report, the DNR area assistant manager responded and arrived on the scene of the fire about 45 minutes later. Shortly thereafter, a helicopter arrived dropping two crew members to combat the fire; it also dropped water on the east flank of the fire. The crew people began digging a hand trail to contain the fire. A short time later, another DNR aircraft also dropped *294water on the fire. In addition, local people with shovels and a tractor joined in the effort to contain the Barker Mountain fire under the direction of the assistant manager. Around 2:30 p.m., two additional DNR crews arrived from the coast to fight the fire. A DNR tractor joined in the fight at approximately 5 p.m.
At this point, the assistant manager turned over control to the local DNR manager. The local manager continued to coordinate the fire fighting efforts on Barker Mountain. By Wednesday night, the winds had died down from the 30-mile-an-hour winds that were blowing in the afternoon. Consequently, the fire was burning lower to the ground instead of through the trees.
In part, due to concern for the manager's fatigue, the need to have fresh crews in the morning to man the different fires in the area, and the reported status of the Barker Mountain fire as calming down, the fire boss called the crews off Barker Mountain about 9 p.m., Wednesday evening.
On Thursday morning, DNR managers did a reconnaissance by helicopter of all fires and their conditions. The Barker Mountain fire was observed on this flight; it was inside the fire lines that had been constructed the night before, and the fire continued to burn close to the ground. By this time, three tractors were again working the fire, and other crews were approaching to man the fire. Based on this observation, it was concluded that the Barker Mountain fire was, under control and no additional plans were made in regard to that fire. By Thursday afternoon, the winds increased to 30 m.p.h. The fire started to break out of the fire lines, and soon the fire was spreading and spotting ahead of the main body of fire, beyond control of the men and equipment at the scene. DNR fire fighters saw a 700-foot long wall of flame approximately 5 feet high coming from one end of the mountain. By 3 p.m., the fire had exploded, and fire fighters were in danger of being trapped. The decision was made to evacuate. On Thursday evening, the United States Forest Service agreed to take two-thirds *295of the fire perimeter. The Barker Mountain fire burned for several more days before it was controlled.
The Barker Mountain fire burned 25,000 acres. The respondents' properties, about 5,000 acres, were burned after the fire escaped Thursday afternoon.
Analysis
Three years ago the petitions for review to the Washington State Supreme Court consisted of numerous cases concerning the public duty doctrine and its reconciliation with the abolition of sovereign immunity of municipalities. It seemed that everyone that sued that had anything to do with a municipality, whether it be the State, a county or city, would end up adding such municipality as an additional defendant, which in turn literally immobilized municipalities by reason of the tremendous legal expenses involved in defending these suits. In an effort to correct the situation, the Supreme Court during July 1988, promulgated three cases to spell out the public duty doctrine of municipalities and their exceptions. They were: Honcoop v. State, 111 Wn.2d 182, 759 P.2d 1188 (1988) (involving a state statute); Meaney v. Dodd, 111 Wn.2d 174, 759 P.2d 455 (1988) (involving a municipal statute); and Taylor v. Stevens Cy., 111 Wn.2d 159, 759 P.2d 447 (1988) (involving a county statute). In each of these cases, we held the government had no duty to the individual plaintiffs, but only a general duty to the public.
In Honcoop, we summarized the principles of the public duty doctrine as follows:
It is axiomatic that to maintain a negligence action a duty of care running from the defendant to the plaintiff must be shown. Where the liability of a governmental entity is at issue, we have employed the "public duty doctrine" to determine whether the duty is one owed to a nebulous public or whether that duty is owed to a particular individual. The public duty doctrine provides that regulatory statutes impose a duty on public officials which is owed to the public as a whole, and that such a statute does not impose any actionable duty that is owed to a particular individual.
(Italics mine.) Honcoop, at 188.
*296The majority argues that the traditional rule of no liability does not apply here because of the legislative intent exception to the public duty doctrine. Under this exception, liability can be founded upon a legislative enactment if that enactment by its terms evidences a clear intent to identify and protect a "particular and circumscribed class of persons." Halvorson v. Dahl, 89 Wn.2d 673, 676, 574 P.2d 1190 (1978) ; Baerlein v. State, 92 Wn.2d 229, 231, 595 P.2d 930 (1979) . The court looks to the purpose of the statute, as it is expressed in the act, to determine whether the Legislature intended to create a duty owed to individual members of the public. See Halvorson v. Dahl, supra at 677.
In Honcoop and Taylor, we found the legislative intent exception did not apply. In Honcoop, we rejected the plaintiffs' argument that the state brucellosis statutes evinced an intent to protect individual dairy operators. Under the brucellosis statutes, the State had a duty to suppress and prevent the spread of the dangerous disease. We found the statutes were enacted for the public welfare and not for the specified class of dairy operators, even though they are directly impacted by the regulatory statutes. Here, the statutes in question impose upon the State the duty to suppress forest fires. These statutes, as discussed below, are for the public welfare of the State, not individual plaintiffs.
In Taylor, the buyers of a house that did not comply with the applicable building codes sought damages from the county which issued the permit. They contended the State Building Code Act's specific reference to "occupants or users of buildings" evinced a legislative intent to identify and protect buyers. We disagreed. (Italics mine.) Taylor, at 164.
In the subject case, notwithstanding specific reference to "forest landowners", the intent of the Legislature in enacting the forest protection statutes is to protect forests in general for the public benefit, not individual plaintiff landowners. See RCW 76.04.165(1) ("the department's primary mission is to protect forest land and suppress forest fires"); *297RCW 76.04.750 ("[a]ny fire on or threatening any forest land . . . is a public nuisance by reason of its menace to life and property'1); RCW 76.04.135 (adequate protection of "life, property, and the natural resources of the state").
Consistent with the Forest Protection Act, the declaration of purpose in the Forest Practices Act of 1974 provides in part:
The legislature hereby finds and declares that the forest land resources are among the most valuable of all resources in the state; that a viable forest products industry is of prime importance to the state's economy; that it is in the public interest for public and private commercial forest lands to be managed consistent with sound policies of natural resource protection . . ..
RCW 76.09.010(1).
The majority argues that the assessment procedure, by which the fire fighting activities of DNR are partially funded, indicates the Legislature's intent to have DNR's fire fighting duties run to the forest landowners as a particular class. This is not true. As demonstrated above, the purpose of the Forest Protection Act is to protect the forest lands for the public benefit. This is further demonstrated in the first provision under the ASSESSMENTS, OBLIGATIONS, FUNDS section of the act. RCW 76.04.600 requires owners of forest land to protect the forests. If the landowners fail to provide adequate protection to the forest lands as mandated by RCW 76.04.600, DNR shall provide such protection, and such cost for providing the protection will be assessed against the landowners. However, there will be no assessment on any parcel of privately owned lands of less than 2 acres. Thus, the first responsibility for protecting the forest lands is upon the owners of forest lands. When they neglect this duty, DNR will provide the requisite fire protection, not for the benefit of the individual landowner, but for the protection of the forest lands in general. In addition, DNR responds to all fires within its jurisdiction regardless of whether or not the landowners in those cases pay assessments. Thus, the assessment procedure is merely a means of financing the fire protection program and not an *298intent by the Legislature to protect a particular class of persons.
Legislative enactments for the public welfare should not be discouraged. If the State were subjected to liability under the common law rule of landowner, it would dissuade the State from carrying out its public duty to fight fires. Instead, the State would suppress any fires on its own lands before responding to neighboring forest fires. This should not be tolerated. See Taylor v. Stevens Cy., 111 Wn.2d 159, 170-71, 759 P.2d 447 (1988).
The majority opinion cites no other exceptions of why the public duty doctrine should not apply. There is none. The only other exception that may apply has been foreclosed by the jury.
Under the "special relationship" exception, a duty arises where (1) there is direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and (2) there are express assurances given by a public official, which (3) gives rise to justifiable reliance on the part of the plaintiff. Taylor, 111 Wn.2d at 166; Meaney v. Dodd, 111 Wn.2d 174, 178-79, 759 P.2d 455 (1988).
In the subject case, the jury found that the 24 plaintiffs did not receive any express or implied assurances from DNR. Question 31 of the verdict form reads as follows:
Each of the plaintiffs in this lawsuit is listed below. Cross off the name of any plaintiff who did not receive through direct contact with DNR' agents [sic] or employees express or implied assurances of protection from the DNR during the fire. [All names were crossed off.]
(Italics mine.) Clerk's Papers, at 242. The jury's verdict has eliminated liability based on the special relationship exception which requires direct assurances.
Issue of DNR Duty as Landowner Never Submitted to the Jury
As discussed earlier, the liability of the State as a landowner was never presented to the jury. Thus, the majority cannot assume "that there was sufficient evidence that *299DNR was negligent in allowing the escape of fire from its land." (Italics mine.) Majority, at 280. The evidence demonstrates that DNR was being charged with negligence as a public fireman, not as a landowner. Respondents introduced evidence attempting to show that DNR fire fighting procedures, in the subject fire, were substandard and defective. The categories of negligence charged against DNR included: (1) failure to use aerial reconnaissance after a lightning storm; (2) failure to attack the fire aggressively and continuously; (3) failure to prioritize the numerous lightning-caused fires; (4) failure to effectively use available resources to extinguish the fire; and (5) general overall failure of DNR management in fighting the fire.
The actions or alleged lack of actions that are at issue concern DNR's judgment in responding and fighting the Barker Mountain fire in its public fire fighting capacity. Thus, the facts of this case preclude the majority from assuming the jury found DNR negligent as a landowner. Instead, the only thing that the majority can assume is that the jury found DNR negligent in carrying out its statutory mandate to suppress forest fires. Under the public duty doctrine, DNR owes no individual actionable duty to plaintiffs and therefore as a matter of law is not negligent as to individual plaintiffs.
Intervening Winds Preclude Liability
Assuming, however, that the jury found that DNR had a duty as a landowner and breached this duty, it does not follow that the plaintiffs can prevail. This is because the uncontroverted evidence in this case leads to but one conclusion: the proximate cause of plaintiffs' losses was the intervening sudden violence of 30-mile-per-hour winds (act of God), without which they would not have occurred. This was a superseding cause which, by its intervention, prevents the State from being liable. Restatement (Second) of Torts § 440 (1965).
Two older Washington cases have held that a strong wind, which arises while a fire is in progress and carries it *300from the land where it is burning to where it would not otherwise have spread, is an intervening cause relieving the party responsible for the original setting of the fire from liability. Stephens v. Mutual Lumber Co., 103 Wash. 1, 173 P. 1031 (1918); Lehman v. Maryott & Spencer Logging Co., 108 Wash. 319, 184 P. 323 (1919).
In Stephens, it was alleged that the appellant negligently permitted the fire to escape from his lands. Appellant was engaged in logging operations when sparks flew off his engine and ignited a fire. When the fire started, there was a light wind from the north blowing the fire away from the camp. Suddenly, the wind changed from the north to the south. The fire began to spread rapidly and "jumped” 1,000 feet over the previously burned area. Soon thereafter, the logging camp was destroyed. The court held there can be no liability in the absence of any evidence of negligence in allowing the fire to spread from the immediate vicinity of the engine, especially where there would have been no loss if the wind had not suddenly changed and jumped the fire to plaintiff's property. The court explained:
the law . . . will [not] charge one with negligence who fails to put out a fire which is not threatening, when such fire, by reason of some new cause, lodges on the property of another or goes beyond the control of the person who set it out.
Stephens, at 7.
Similarly, in Lehman v. Maryott & Spencer Logging Co., 108 Wash. 319, 184 P. 323 (1919), there was a "gale of wind" blowing. The court held:
A strong wind which arises while a fire is in progress and carries it where it would not otherwise have spread is an intervening cause which will relieve the party responsible for the original fire from liability for loss.
Lehman, at 323-24.
The Montana Supreme Court very recently found the State not liable for combating forest fires which resulted in damage to plaintiffs' properties because of intervening winds. In Jacobsen v. State, 236 Mont. 91, 769 P.2d 694 (1989), homeowners brought an action against the State alleging negligence in combating forest fires. The court held *301that intervening forces of nature — sudden strong winds— were the cause of the fire that resulted in plaintiffs’ losses.
The Barker Mountain fire started sometime Wednesday. By Wednesday afternoon, DNR crews arrived to combat the fire. By Wednesday night, the fire had calmed down. On Thursday morning, the fire was still inside the fire lines that had been constructed the night before, and the fire continued to burn close to the ground. On Thursday afternoon, crews were working on the fire when the wind suddenly increased to 30 m.p.h. It was when the winds dramatically picked up to 30 miles per hour that the fire started to break out of the fire lines. Soon thereafter, the fire began spreading and jumping ahead of the main body of the fire. By 3 p.m., the fire exploded. Plaintiffs' properties were damaged sometime after the fire exploded on Thursday afternoon.
Before the winds flared up on Thursday afternoon, DNR had the fire contained within the fire lines it had constructed the previous day. The crews were diligently working on a controlled fire when the intervening winds caused the fire to jump beyond the fire lines. Only after the winds fueled the fire into an explosion did the plaintiffs' properties suffer damage. As in the above cited cases, there can be no liability for failure to put out a fire which is not threatening, when such fire because of sudden intervening winds jumps to plaintiffs' properties. This intervening act of God was the proximate cause of plaintiffs' damages, and DNR was not guilty of negligence nor the proximate cause of plaintiffs' damages.
Common Law Duty as a Landowner
Respondent landowners contend that it has long been the common law in Washington that each landowner owes his neighbors a duty to use all reasonable efforts toward preventing the spread of fires on his property.
Respondents rely heavily on Arnhold v. United States, 166 F. Supp. 373 (W.D. Wash. 1958), vacated, 284 F.2d 326 (9th Cir. 1960), cert. denied, 368 U.S. 876 (1961), to *302support their contention that the State has a duty as a landowner and that such a duty provides a separate basis for liability in this case. However, their reliance on Arnhold is misplaced under the circumstances of this case.
In Arnhold, the United States assumed responsibility, for providing fire protection of the timberlands within a protected area, from the State of Washington. The court found that the United States was the owner of considerable lands within this protection area and assumed the fire protection duty as a landowner, rather than merely as a public fire protection agency. Arnhold, 166 F. Supp. at 386. Consequently, the court did not address the duties and liabilities of the government where it acts solely in its capacity as a public fireman. Nor did it discuss the public duty doctrine or the. public policies relevant to holding a public fireman liable for the performance of its duties.
The court in Arnhold recognized that there may be no duties or liability attending the performance of public fire fighting. Indeed, as the early case law in other jurisdictions reflects, public policy reasons foreclosed the liability of such fire fighting agencies. See State ex rel. Kern v. Arnold, 100 Mont. 346, 49 P.2d 976 (1935); Long v. Birmingham, 161 Ala. 427, 49 So. 881 (1909); Wilcox v. Chicago, 107 Ill. 334 (1883); Brinkmeyer v. Evansville, 29 Ind. 187 (1867).
On the ground of public policy, it was stated in Wilcox v. Chicago, supra:
If liable for neglect in this case, the city must be held liable for every neglect of that department, and every employe [e] connected with it, when acting within the line of duty. It would subject the city to the opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employe [e]s had used the requisite skill for its extinguishment; whether a sufficient force had been provided to secure safety; whether the city had provided proper engines and other appliances to answer the demands of the hazards of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person's property *303within the limits of its jurisdiction. It would assuredly become too [burdensome] to be borne by the people of any large city, where loss by fire is annually counted by the hundreds of thousands, if not by the millions. When the excitement is over and calm reason assumes its sway, it may appear to many where other methods could have been adopted to stay destruction, that appear plausible as theories, and their utter fallacy can not be demonstrated by any actual test. To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great, if not greater, [burdens] than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority.
Wilcox, at 339-40.
In the present case, the evidence demonstrates that DNR was being charged with negligence and that it acted solely in its capacity as a public fireman, and not as a landowner.
Conclusion
DNR never admitted negligence on the facts of this case. Without a duty owed to the individual plaintiffs, DNR cannot be negligent. Under the public duty doctrine, DNR, when it is carrying out its statutory mandate to combat forest fires for the public welfare, owes a duty only to the general public, not to the individual plaintiffs. Because the Legislature did not intend to protect individual landowners, and because the jury found in written interrogatories that DNR gave no assurances to the landowners on which they relied, no exceptions to the public duty doctrine apply.
The question of whether or not there was a separate landowner duty did not go to the jury. The only issue that went to the jury was whether or not DNR had a duty as a fire fighting organization to suppress the fire. Report of Proceedings, at 4 (Apr. 7, 1987). Because this duty is owed only to the public, the jury's verdict of negligence that would support the individual plaintiffs' judgments is wrong as a matter of law.
Even if the jury had been instructed on the State's alleged landowner duties, the public duty doctrine applied, and the State owed no duty to the individual plaintiffs, but *304only a general duty to the public. As DNR owed no individual duty to plaintiffs, DNR is insulated from negligence to plaintiffs as a matter of law.
An additional reason for setting aside plaintiffs' judgments is that there was an intervening act of God. After the Barker Mountain fire had been contained, a 30-mile-per-hour windstorm intervened causing an explosion which drove the fire fighters off the property. The fire then escaped and burned plaintiffs' properties causing great damages. Plaintiffs' damages were proximately caused by an intervening act of God, not the negligence of the Department of Natural Resources.
I would reverse.
The following colloquy took place at oral argument between the attorney for DNR, John Hough, and the court. The plaintiffs' attorneys were present and did not dispute any of Hough's statements.
John Hough: Well it may be a jury question whether or not the State is engaged in proprietary activities at the time or its governmental fire fighting activities at the time, but that was not a question put to the jury. The case went to the jury on whether or not the DNR performed its obligations as a fire fighting organization.
Justice Andersen: It did not go to the jury on the State's status as a landowner?
John Hough: There was a factual question posed to the jury as to whether or not it started on state land, but the instructions to the jury was whether or not the DNR had a duty as to a fire fighting organization to fight this fire and whether it performed that duty in a non-negligent fashion. The question of whether or not there was a separate landowner duty did not go to the jury, and the reason that it didn't was that before trial, the trial court ruled that that issue was not going to be an issue at trial.
Justice Andersen: Has there been a cross appeal from that ruling?
John Hough: No sir.
Justice Andersen: You're telling us at this point now, this case from the posture in which the verdict was returned based on instructions and so on — it was not based on the State’s duty as a landowner — common law and statutory?
John Hough: That's right.
(Italics mine.)
The appellants failed to incorporate the court's instructions in the record, and we do not have the benefit of reading them, but it is clear from the trial judge's remarks and the State's attorney's statements, which are in the records, that the jury was only instructed on the Department's duty as a fire fighter protecting the general public. The jury was not instructed on DNR's duty to the individual plaintiffs.
The forest protection statutes in RCW 76.04 were amended in 1986, 1 year after the Barker Mountain fire, and a few sections in 1988 were amended. Laws of 1986, ch. 100. As the relevant substance of the statutes has not changed, citation is to their current version.
A project fire is one which requires that statewide resources be mobilized to handle the fire.