Why Lawyers Fear Minks

You can be fairly confident that the animal rights activist who released thousands of minks and thus disaster — see The Fur Flies and Crawls and Bites — was not a lawyer. Just about every law student learns from Foster vs Preston Mill Co, 268 P.2d 645 (Wa. 1954), that minks eat their young when upset.

The Foster case's facts are at least as strange as the Washington Post article. The defendant was blasting to clear some land two+ miles away from a mink farm. The noise upset the minks, they started eating their young, plaintiff lost a bundle. The court held that because blasting is an ultrahazardous activity, the defendant was strictly liable for whatever harms it caused, however weird and unpredictable they might be. Once the class was duly outraged, our Torts professor managed to suggest that this is a predictable behavior among minks, so the issue is who has a duty to find out what local conditions are (how predictable are mink farms?), and it got more convoluted from there.

No one having had the experience of Foster, however, would be likely to turn minks loose on the world. But I've always thought it might be fun to teach Torts.

Googling I found a nice summary of the case, inside what seems a like a chapter from a great Torts book by Dean Mark Grady of George Mason Law School:

In Foster v. Preston Mill Co., 44 Wash. 2d 440, 268 P.2d 645 (1954), the defendant was constructing a logging road along the side of Rattlesnake Ledge, which was approximately two and one quarter miles from the plaintiff’s mink ranch. Although the plaintiff’s mink ranch was in a relatively rural area, it was about two blocks from U.S. Highway No. 10, which was a main east-west thoroughfare across the state.

It was necessary to use explosives to build the logging road. The defendant used the customary types of explosives, as well as the customary methods of blasting. The procedure was to set off two blasts a day, once at noon and the other at the end of the workday. The defendant’s expert, Professor Drury Augustus Pfeiffer of the University of Washington, later testified that a highly sensitive pin seismometer yielded no measured ground movement from blasts the same size that the defendant had made, at a distance equal to that separating the defendant’s construction area from the plaintiff’s mink ranch.

Minks are notoriously sensitive animals, and the defendant’s blasts began just as the plaintiff’s mother minks were beginning to bear their young. The mother minks began to eat their young. Immediately after the blasts started, the mink mothers killed 35 of their kittens. The plaintiff’s manager then told the defendant’s manager what had happened. He did not request that the blasting be stopped. After some discussion, however, the defendant’s manager said that future blasts would be made as light as possible. The amount of explosives used in a normal shot was then reduced from 19 or 20 sticks to 14 sticks. The carnage continued.

The defendant’s officers testified that it would have been impractical to cease entirely road-building during the several weeks required for the minks to whelp and wean their young. Such a delay would have made it necessary to run the logging operation another season. It would also have disrupted the company’s log production schedule and consequently the operation of its lumber mill. The plaintiff brought suit, and the trial took place before a court sitting without a jury; it was thus a “bench trial.” The trial court found for the plaintiff, holding that the defendant was strictly liable for the deaths of all minks killed after the conversation between the plaintiff and the defendant’s manager.

[Please, no one put in the comments that lawyers hate minks because they are expensive…]

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3 Responses to Why Lawyers Fear Minks

  1. zach says:

    interesting case…but you might want to note that the case was overturned on appeal and the blasting company was NOT held liable. The washington supreme court held that what makes blasting ultra-hazardous is not the risk of minks eating their young, they are not strictly liable for that harm – they might be strictly liable if rocks from the explosion landed on the minks and killed them, since that is one of the possible risks that makes blasting ultra-hazardous.

    just thought i’d set the record straight.

    • Clayton Mcgill says:

      Thank you , I was just going to say the trial court’s ruling was overturned on appeal.

      • Michael says:

        Yes, I should have mentioned that; the final version of the case is famous for the idea that even ultra hazardous liability does not extend to risks completely outside the scope of the risk we associate with the activity, aka disputant freak accidents.

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