Published Articles

FOR VEHICLES COLLIDING WITH LIVESTOCK ON HIGHWAYS

Determining when and under what circumstances the owner of an animal can be subrogated against in a civil action for damage to a motor vehicle or truck remains one of the greatest challenges of claims handlers attempting to subrogate in multiple estates.In no other area of subrogation, other than perhaps workers compensation, are the differences in the law from state to state more painfully obvious. It remains both the challenge and obligation of subrogation personnel to become and remain familiar with the variety of laws from state to state, which play such an integral role in determining whether property damage is subrogable when your insured collides with cattle or livestock on the highway.

OPEN-RANGE LAWS

At common law, the owner of cattle or livestock was liable if he caused or allowed livestock to enter upon someone elses property, without that persons consent, and damage resulted. As the cattle industry grew, states began to pass open-range laws which allowed domestic livestock to graze and move about generally, unrestrained by fences, with little or no liability to the owner. As urban areas spread and traffic increased, some repealed open-range laws and enacted closed-range laws created stock-law areas, prohibiting cattle by statue or ordinance from running at large. Still, other states enacted restrictive definitions of open-ranges resulting in some areas or counties of a particular state being open-range and some areas being stock-law areas. This was overlaid with a patchwork and variety of state tort laws, resulting in a confusing array of laws for the subrogation specialist, varying not only from state to state, but also county to county. Many states currently have or have had some open-range or non stock-law areas in their borders.[1]

Idahos open-range laws clearly state that domestic animal owners have no duty to keep animals off of the highway or an open-range and shall not be liable for damage to any vehicle or injury to any person caused by a collision between the vehicle and the animal.[2]

The term open-range is generally defined by Idaho statute as:

All unclosed lands outside of the cities, village, and herd districts, upon which cattle by custom, license, lease, or permit, are grazed or permitted to roam.

The legislature uses absolute language in immunizing owners in open-range areas from liability under any cause of action, where the animals are lawfully present on the highway.But not all of Idaho is open-range and in any area where cattle does not by custom, license, lease, or permit graze or roam on the land, the owner has a duty to keep such animals off of the highway and may be liable for damages to a vehicle or injury to a person caused by a collision where he fails to do so.[3]

On the contrary, the state of Mississippi is a stock-law state. By law, the entire state is stock-law area, and cattle are not allowed to run at large upon the open or unfenced lands of another person, including highways. In Mississippi, however, upon the petition of 20% of the qualified electors of any county,[4] individual counties may become open-law counties.[5]

Unlike Idaho, the entire state of Missouri became a stock-law state, making it unlawful for the owner of livestock to permit the animals to run at large outside of an enclosure.[6]

The Missouri statute itself also provides that the owner will pay all persons damage by reason of such animals running at large, any damages sustained by them, unless the owner can establish that the animals were outside of the enclosure through no fault of theirs. Liability for an animal on the highway is incurred only when the owner permits it to be there or when the owner has something to do with the animals presence.[7]

In Oregon, 607.261 prescribes that no person will allow an animal to run on the open range other than a purebred bull of the recognized beef breed. Female breeding cattle are not allowed on the open range unless accompanied by one purebred bull of a recognized beef breed for every twenty-five females.[8]

To make matters worse, no stallion or jackass, 18 months old or older, is permitted to run on the open range from April 1^st to October 3^rd of each year.[9]

No ram shall be permitted to run at large on the open range from July 2nd through October 31^st.[10]

So at least in Oregon, subrogation personnel have to be aware of not only the sex of the cattle which is struck by the insured, but also its age, the number of females it is accompanied by, and the time of year.

In Louisiana, some parishes are stock-law and some are open-range law.[11] To the contrary Alabama has no open-range counties.[12]

The state of Nevada has open-range lands, but defines them as:

All unenclosed land outside of cities and towns upon which cattle, sheep, or other domestic animals by custom, license, lease, or permit are grazed or permitted to roam.[13]

The state of Montana likewise has an open-range law, but defines open range as:

those areas of the state where livestock raised and maintained in sufficient number as to constitute a significant part of the local or county economy and where such animals grace, move about generally unrestrained by fences.[14]

The state of Oregon recognizes open-range areas, but specifically prohibits allowing cattle or livestock within the boundaries of the right of way for a state highway, which is part of the national system of interstate and defense highways.[15]

Subrogation personnel should be keenly aware of when, where, and under what circumstances an area may be defined as open-range. Attempting to subrogate against the owner of cattle for a collision, which occurs in an open-range area, may result in a counterclaim against your insured for loss of the cattle. In some cases, the driver of the motor vehicle must exercise unusually high or the highest degree of care to avoid striking the cattle.[16]

In most stock-law areas, the owner of livestock will be liable for property damage to your insureds motor vehicle only upon proof of negligence.[17] This negligence could be allowing the animals to escape from confinement, providing inadequate enclosure for the animals, keeping a gate unlocked or open, failing to promptly pursue escaped animals, or even proof that the animals had been previously at large on one or more occasions.

While strict or absolute liability for damage to a motor vehicle on the part of the owner of a domestic animal has been summarily rejected in virtually every jurisdiction, some courts have allowed for a presumption or inference of negligence on the part of the owner of cattle, allowing the owner an opportunity to rebut this presumption of negligence with sufficient evidence.[18]

However, the presumption of negligence will not apply in open-range areas.[19] Where a presumption of negligence applicable, the jury may be instructed that they can infer negligence on the part of the defendant from the fact that the animal was on the highway at the time of the collision, but that such an inference is not conclusive, and that the burden of proof is on the defendant to prove that the animal was on the highway without any fault or negligence on his part.[20]

RES IPSA LOQUITUR

Res. ipsa loquitur is Latin for the thing speaks for itself. However, after the last few cases I have tried based on a res. ipsa loguitur theory, I am convinced that it stands for this case is a dog. The theory of res. lpsa loquitur is a difficult theory on which to prevail, especially in cases where it may be very difficult to prove negligence on part of the owner, such as where only the owner knows exactly what happened. Extenuating circumstances such as repeated patterns of cattle being loose on the highway; or large number of cattle loose on the highway at one time, may or may not be enough to convince the jury that the cattle would not have been on the highway were it not for the negligence of somebody.The doctrine of res. ipsa loguitur allows the jury to presume negligence without proof thereof. Although difficult to do, res ipsa loguitur can be used to place liability upon the owner of a domestic animal, which is roaming on the highway.[21]

The doctrine of res. ipsa loquitur allows the jury to find negligence without any proof of negligence, and can be used in numerous states.[22]

INVESTIGATION IS CRITICAL

Situation where the owner of the cow has admitted to leaving the gate open or not quite getting around to fixing the hold in the fence are rare. In other words, because most jurisdictions require, at the very least, proof of some negligent act, investigation which you conduct immediately after you receive notice of the claim is critical. Frequently, a downed fence is mended within hours of the loss.Photographing new section of fencing or sections of downed fencing in other areas can help prove negligence on the part of the animals owner. Checking with the county sheriffs department regarding other accidents involving cattle in the area over a several year period preceding the loss may also provide other similar examples of the owners cattle getting loose and causing accidents. IF necessary, an expert may be retained inexpensively to help shore up a case for an appropriate or substandard enclosure for the animals. Visiting and interviewing neighbors can often reveal testimony about frustration with constant and repetitive instances of the neighbors cattle being loose on their property.

INSUREDS CONTRIBUTORY NEGLIGENCE

When evaluating cow in the road cases, be sure to evaluate your own insureds negligence objectively.Contributory negligence can be place on your insureds driver for failure to keep an assured clear distance, and for having improper equipment such as lights and/or brakes.

SUMMARY

When subrogating against the owner of livestock struck on the roadway by our insured, it is imperative that subrogation personnel be familiar with the range laws of the state, and perhaps county involved. that a proper and through investigation be conducted as soon as possible, and that every effort be made to ascertain specific acts of negligence conducted on the part of the owner of the animal in order to avoid relying on presumptions and doctrines such as res. ipsa loguitur,.The more rural and area, the more likely a jury is to find for a rancher or animal owner. In more urban areas, juries tend to put a higher burden on the animal owner to keep the animal off the highway. Simply being familiar wit the laws involved will go a long way to settling such disputed cases.