Liability of Livestock Owners For Livestock/Motor Vehicle Collisions
R. Lar Thomas, J.D.
Livestock owners are liable for damages and injuries sustained by others in collisions with their livestock1 when the livestock owner has been negligent. This article will first examine the standard of negligence in New Mexico on fenced and unfenced range. Then, it will examine the current status of the doctrine of res ipsa loquitur with respect to livestock/automobile collisions.
Liability for Negligence
The first step in determining negligence of the livestock owner is to determine whether the accident occurred on a fence or unfenced highway. Prior to 1965, if livestock were running at large outside of established herd law districts, there were no statutory requirements to keep livestock off of New Mexico highways. Under common law there could only be liability if the livestock owner could have anticipated that his animals would cause damage or injury. In effect, this was a true open range policy where motorists could have been liable for injuries caused to livestock as a result of a collision with them even if they were on unfenced range.
In 1965, the New Mexico Supreme Court effectively abolished the long standing open range laws in New Mexico. In Grubb v. Wolfe2, the Supreme Court held that livestock owners were liable for injuries caused to motorists colliding with livestock running at large on unfenced New Mexico roadways. The court effectively placed a duty of ordinary care of skill on livestock owners to keep livestock off of unfenced highways.3
The New Mexico Legislature, however, came to the immediate rescue of livestock owners throughout the state by enacting the Animals on Highway statute, then found at N.M.S.A. §64-18-62 (1953 Comp.).4 The statute provides that owners of livestock on open range pasture shall not be liable for damages or injuries caused by collisions with automobiles in the absence of negligence on the part of the livestock owner.
This somewhat limited the liability of livestock owners who used open (unfenced) ranges. The statute was modified a year later to require some act of "specific negligence" other than allowing one's animals to be on the unfenced range.5 This change was made to accommodate the doctrine of res ipsa loquitur which was found to apply in livestock/automobile collisions.6
Thus, there are two factual situations to consider: (1) the cases where livestock are found on unfenced, or open range, and (2) where livestock are on fenced pasture. The Supreme Court has adopted jury instructions to cover these two situations. See SCRA 13-503 and 13-505. Two other instructions deal with the issues of "legal fence" and trespassing livestock. See SCRA 13-502 and 13-501.
In 1975 Justice Oman, writing for the Supreme Court of New Mexico, in Dean v. Biesecker7 found that the "specific negligence" test was not met where a motorist collided with cattle that had been allowed by their owner to graze in pastures that had unfenced roads passing through them. In this case the State of New Mexico had constructed the road and was responsible for its maintenance. The court found that as vehicle traffic increased through this area, so did the number of livestock/automobile collisions. However, the defendant cattle owner was under no duty to fence the roadway nor to abandon his property and, therefore, could not be found negligent.8
The court, by way of dicta, found that the State of New Mexico had a duty to protect the motoring public and livestock owners. The rationale was that it had the responsibility of maintaining the road and had knowledge of the increasing dangers to both motorists and livestock owners. Given this trend, it felt that the state should have fenced the roadway to protect these parties.9 This is an avenue the trial lawyer should consider in collisions on open range.
In Vanderwater v. Hatch,10 a motorcyclist ran into a dark-colored yearling cow at night were the highway traversed both fenced and unfenced pasture. The plaintiff, who was a passenger on the motorcycle, asserted that the livestock owner was negligent for the escape of his cow from the fenced pasture and its wandering upon the highway at night. However, the court found that the accident occurred on unfenced range and therefore, the defendant was not negligent.11
Even where animals were found on the highways at night or where there had been several previous instances of collisions between motorists and livestock, courts throughout the Western United States have been reluctant to find liability on the part of livestock owners. IN a similar case, The New Mexico Court of Appeals in Carrasco v. Calley12 upheld the trial court's decision granting defendant's motion to dismiss a complaint in negligence. Here, allegations of negligence were based upon the facts that this was a collision that occurred during the hours of darkness and that the livestock owned by the defendant had been involved in collisions with automobiles in the past. The court also stated, though not deciding the issue, that even establishing a prima facie case does not prevent dismissal of the complaint at the conclusion of plaintiff's case.
Other Western states seem to take different views of open range grazing and the liability attached thereto if livestock are involved in collisions with motor vehicles. For instance, livestock owners in California were held accountable for damage or injuries caused by their livestock that wandered onto highways traversing open range. In the case of Galeppi Bros. v. Bartlett13 the defendants contended that since there was no common law requirement to keep their cattle off the highway they had no duty and negligence could not be found. The court disagreed stating that the common law rules had been developed before the advent of highways and motor vehicles and it was compelled to find a duty to keep livestock off the highways.14
Though there may be cases in other jurisdictions that may lead some to conclude otherwise, it appears to this author that the courts are placing an ever increasing duty on owners to keep their livestock off of roadways that pass through open range. This duty seems to grow with the number of motor vehicles found on the highways each day. Of some consolation to livestock owners is the fact that New Mexico continues to hang on to its open range policies by imposing a duty on motorists to use due care to avoid collisions with livestock when traveling on unfenced roads that bear livestock warning signs.15 The plaintiff injured in a livestock collision on an open range should consider the duty of the state to fence the pasture.
There is also the possibility of liability for damages or injuries caused by livestock that are kept confined by fences on property that borders roadways.16 In an action for damages sustained by a motorist that collided with a horse on a New Mexico highway, the court in Mitchell v. Ridgeway17 held that N.M.S.A. §40A-8-10 (1953 Comp.), which stated that it was unlawful to permit livestock to run at large on a highway which was fenced on both sides, and §64-18-62 (1953 Comp.) were violated.18 However, the court expressed its opinion that violation of statutory law (or common law) was merely a method of establishing that fact and did not necessarily establish negligence.19
The courts have been somewhat less tolerant of accidents caused by livestock that have escaped from fenced pasture to run at large on New Mexico highways. Liability in these cases depends upon who has the control and authority for constructing or maintaining the fence. New Mexico law provides that "Every owner or custodian of livestock shall exercise diligence to keep his livestock off the state public fenced highways..."20 Whenever a fence is involved, consideration should be given as to whether the fence was a legal fence under New Mexico law.21 The fact that livestock escapes from a fence that does not meet statutory guidelines may not necessarily be negligence per se.
However, if the fence adjoining the livestock owner's property is maintained by the state highway department, it is the highway department's duty to repair and maintain the fences.22 This is assuming that there has been no other arrangements made for the care of the fence between the livestock owner and the highway department. But, the livestock owner is not relived of the duty to report any damage to the fence to the highway department.
In Fireman's Fund v. Tucker23 suit was brought against the owners of two cows that were involved in a collision with a tractor-trailer rig. The cattle owners then cross-claimed against the state highway department. The Court of Appeals held that the highway department was not immune to suit filed under the state Tort Claims Act24 where it had a statutory duty to maintain fences along the highway and it did so negligently. The court also explained that it was the legislative intent to protect the motoring public under the state law for criminal offenses, §30-8-13 (unlawfully permitting livestock upon public highways).25
A different result was reached in the earlier case of Williams v. New Mexico State Highway Commission26 where a motorist was killed in a collision with a yearling calf that had somehow gotten around a cattle guard. The court here decided that an insurance policy exclusion for "completed operations" was justified where construction of the cattle guard project met the definition stated in the policy and thus, there was no liability. The disparity in these two cases arises from the fact that the court held sovereign immunity was waived in Fireman's where the Williams court found that sovereign immunity could only be waived to the extent of insurance coverage.
In what is perhaps the most unusual case factually, the 10th Circuit in Steed v. Roundy27 found that the defendant livestock owner was not negligent when a motorist collided with his horse that was running at large on a fenced highway. The facts showed that a mare belonging to defendant's neighbor, which was pastured two miles away from the defendant's pasture, escaped her enclosure, traveled down the road and released the defendant's horses by kicking the gate open to his pasture. The court found that even though the neighbor's mare had a propensity to open or kick gates down so that she could be with other horses, the defendant had no knowledge of this behavior and had exercised reasonable care with regards to the construction, maintenance and inspection of his gates and fences in accordance with state law.
Res Ipsa Loquitur
The doctrine of res ipsa loquitur creates an inference or rebuttable presumption of negligence. It is applicable only if there is substantial evidence that the act complained of does not ordinarily happen without negligence and that the defendant had exclusive control of the instrumentality causing the damage or injury. This essentially places the burden of proof on the defendant to prove he was not negligent.
Several cases involving collisions with livestock have addressed the issue of whether the doctrine of res ipsa loquitur should apply to these types of situations. In Martinez v. Teague,28 the plaintiff/motorist collided with horses owned by the defendant, who had allowed his horses to run at large. The highway where the collision occurred had state maintained fences on both sides but the evidence showed the fences were in good repair and that the horses escaped through a gate purposely left open by their owner. Briefly, this doctrine can only apply if the following is answered in the positive:
1. The accident must be of the kind where does not occur in the absence of someone's negligence.
2. The accident must be caused by an agency or instrumentality within the exclusive control of the defendant.29
The doctrine applied here because the test was sufficiently met. However, the court also stated that mere proof of an accident was insufficient to invoke res ipsa loquitur as both prongs of the test must be met.30
The Mitchell v. Ridgeway31 court held that there was a cause of action in negligence relying on the theory of res ipsa loquitur. The defendant here had negligently maintained a fence within his exclusive control and his horse, which was under his exclusive control as well, escaped from the fenced pasture and caused the injuries complained of. It was also held that the horse's escape was not caused by another person and thus both elements of the test were satisfied.32
This doctrine does not apply in every case. In cases involving collisions between cows and motorists, the New Mexico Court of Appeals in Akin v. Berkshire33 and Tapia v. McKenzie34 held in each case that there was no evidence presented that would indicate the fences or gates were negligently constructed or maintained. Therefore, absent any evidence of negligent acts, the defendants could not be found negligent and res ipsa loquitur would not apply because the underlying test was not met.
In open range situations there is now a duty on livestock owners to exercise due care in keeping their livestock off of New Mexico highways. In areas where fences are present there is now a statutory duty to us diligence in constructing, maintaining and repairing them. Livestock owners also have a duty to report fences that are in disrepair even where they have no actual ownership rights in them. The doctrine of res ipsa loquitur has been imposed on livestock owners which places the onus on them to prove that their acts were not negligent.
Over the past 50 years or so the United States has shifted drastically from an agrarian society to one that it almost totally urbanized. This has presented new obstacles that must be dealt with by those who raise livestock under range conditions. As we move away from common law and begin to rely more on statutory authority, we will see an increasing trend to impose a higher standard of care on livestock owners to prevent livestock/automobile collisions on the state's highways.
Open and fenced ranges will continue to be dissected by highways that are being constructed to accommodate the ever rising number of motor vehicles today. The automobiles and the speed at which they travel will continue to increase the burden on livestock owners to keep their animals off the highways whether they are fenced or not. These factors may cause liability to turn from that of negligence to one approaching strict liability, thus shifting the burden of proof from the many motorists to the few livestock owners.
1. N.M.S.A. §77-14-2 (1989 Cum.Sup.).
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