WHERE’S THE BEEF? Subrogating Livestock/ Vehicle Collisions In Texas

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Texas BarnThere are 22 million vehicles registered in Texas. There are also 13 million head of cattle, the most in the country and over twice the number of the state with the second-most—Nebraska.[1] Cattle and cars intersect more often than insurance companies would like to think about. In fact, in the fall season of September, October, and November, animal collisions in Texas account for an astonishing 24% of all car crashes. Damages from these collisions amounts to over $1.3 billion annually which means that subrogating these losses has become an important area of claim reimbursement for aggressive and prudent insurers. Subrogating Texas vehicle/livestock collisions, however, is more of a challenge than one might expect.

Lay persons and many claims professionals might assume that if livestock wanders onto the roadway and causes a collision, the animal owner would be responsible for any damages. However, as many lawyers and subrogation professionals in Texas ultimately discover, not so much. The law in Texas is not nearly that simple. In fact, in many cases, the ability to pursue the owner of livestock depends on whether a county has adopted local stock laws—something that can only be determined by contacting the county in question and doing some legal archaeology. In Texas, the State gave each county the autonomy to decide on whether to adopt the stock law. A full explanation is provided below.

History of Livestock Laws in Texas

Livestock laws in Texas are storied, vary greatly, and are incredibly confusing. These laws derive from the confluence of historic common law, century old constitutional provisions, multiple legislative pronouncements, and local stock law elections and decisions. This means that you can be traveling in Texas and in less than a few miles travel through both open range and closed range country, depending on the county you are in or the type of road you are driving on.

Texas LonghornUnder the English common law inherited by the U.S., an owner of a domestic animal had a duty to prevent the animal from trespassing onto a neighbor’s land, but had no duty to prevent the animal from straying onto a public roadway, unless the owner had prior knowledge that the animal had vicious propensities.[2] Like many western states, Texas was quick to reject the English common law rule for animal trespasses on neighbors’ property.[3] The framers of the 1876 Texas Constitution delegated to the Legislature the power to deviate from the free range rule by passing laws regulating fences and livestock. Article 16, § 22 of the Constitution states:

“Fence laws. The Legislature shall have the power to pass such fence laws, applicable to any subdivision of the State, or counties, as may be needed to meet the wants of the people.”[4]

When combined with the common law rule of no duty to restrain animals from the roadway, the rejection of the common law duty of animal owners to neighboring landowners rendered Texas “free range” as a general rule. In Clarendon Land, Inv. & Agency Co. v. McClelland,[5] the Texas Supreme Court described the resulting rule:

“Neither the courts nor the legislature of this state have ever recognized the rule of the common law of England which requires every man to restrain his cattle either by tethering or by inclosure…. It is the right of every owner of domestic animals in this state, not known to be diseased, vicious, or “breachy,” to allow them to run-at-large….”[6]

As a result, people are quick to note that Texas is what is known as an “open range” state, meaning that ranchers do not have a legal duty to prevent their animals from getting onto the roadway. This is the default rule in Texas. However, this doesn’t entirely shield livestock owners from liability, but certain factors must be in place for animal owners to be considered responsible after a crash. There are two main exceptions to the open range rule:

  1. Stock Laws
  2. State and Federal Highways

In Texas, these two main exceptions to the open range rule both rely on the location of the accident.

Stock Laws

There are two kinds of counties in Texas when it comes to vehicle/livestock cases. Those counties who have adopted “Stock Laws” and those who have not. The authority granting counties the power to have an election to adopt “stock law” is granted under Chapter 143 of the Texas Agriculture Code.

Cow on RoadThe first exception to the open range rule is if the incident occurred in a county that has enacted a stock law. Stock laws are passed by local voters, usually on the county level, and essentially change the open range policy to closed range. This means that within a county that has adopted stock law (closed range), livestock owners have a duty to prevent their animals from entering the roadway and can be held liable for damages they cause if they do wander onto the road. The majority of counties in Texas are closed range, but there are still quite a few counties that are open range to this day.

Stock laws vary greatly. Each case must be looked at carefully to determine (1) whether the stock law applies to an exact accident location, (2) whether the livestock involved is covered by the stock law, and (3) whether the owner “permitted” his livestock to run at large.

Surprisingly, there has been no official compilation of stock laws in Texas by county, until now. These laws were often contained in the minutes of county commissioner courts or county clerks. Local lawyers had to be consulted to determine the applicability of local stock law and whether any one county out of Texas’ 254 counties had passed such a stock law. Mark Solomon with Matthiesen, Wickert & Lehrer’s Austin, Texas office took up the task of researching, gathering public data available, and compiling a chart of the stock law adoption status for all 254 Texas counties. As of January 1, 2020, they are now neatly compiled in one chart on MWL’s website, and can be located HERE.

State and Federal Highways

The second exception to the open range rule in Texas is for U.S. and state highways. Texas Agricultural Code § 143.102 provides as follows:

“A person who owns or has responsibility for the control of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway.”

In Texas, the statute defines a “highway” as a “U.S. highway or a state highway, but does not include a numbered farm-to-market road.”[7] Demonstrating the Legislature’s precision in defining the scope of the statute, § 143.101 goes on to add that the term “highway” “includes the portion of Recreation Road Number 255 that is located in Newton County between State Highway Number 87 and the boundary line with Jasper County.” Texas courts have relied upon these two statutes (§§ 143.024 and 143.102), or their predecessors, to hold or assume that livestock owners may be liable for negligence if their animals stray onto highways,[8] or other roads in areas that have passed stock laws.[9] However, when a collision does not occur on a highway, but rather occurs on a farm-to-market road in an area that has not adopted a local stock law, there is no exception to the free range rule, and the Texas Supreme Court has specifically declined to create one.[10] Texas courts have relied on local stock laws to hold or assume that livestock owners may be held liable for negligence if their animals stray onto roadways in districts where local stock laws have been passed.[11] What’s more, the Court has also stated that these statutes, even though they create merely criminal offenses, are dispositive of and establish civil liability.[12] In declining to impose a new common law duty, the Supreme Court found it significant that the Legislature has, pursuant to constitutional grants of authority, established and often revisited its own scheme for determining when duties of restraint should or should not be imposed upon livestock owners.[13]

As with stock laws, an owner violating this federal and state highway exception must “permit” cattle to enter a roadway in order for liability to attach.[14] Where an owner properly keeps a gate locked and chained and has no notice of his livestock entering a roadway, this is insufficient to show that he acted “knowingly.”[15]

Texas also has different laws for different kinds of roads. The Agriculture Code states that it is unlawful for a livestock owner to knowingly permit livestock to roam unattended on a U.S. or Texas state highway.[16] Numbered farm-to-market roads are specifically excluded, unless they are in an area covered by a local stock election law.[17]

Proving Negligence

In both stock law and highway cases, it must still be proven that the livestock owner was negligent and “permitted” the animal to roam in some way. It could be that the owner left a gate open, knew about a hole in fencing and didn’t fix it, or had evidence that livestock had previously escaped from the property and didn’t take action. Livestock simply being on the highway isn’t enough to prove that the owner is liable. As a result, early investigation, including photographs, statements, evidence of broken fences, gates left open, etc., is critical in building a good subrogation case against a livestock owner in Texas.

For more questions regarding litigating livestock/vehicle collisions in Texas, or to discuss MWL handling your livestock/vehicle collision claims, contact Mark Solomon at [email protected], managing partner of MWL’s Texas branch office, or Gary Wickert at [email protected], author of “Where’s The Beef?” Subrogating Livestock/Vehicle Collisions In All 50 States (Third Edition), which is available HERE.

[1] To help with Trivia Night, the state with the least amount of cattle is Rhode Island, with less than 5,000.

[2] For a description of the English common law rules, see e.g., Cox v. Burbidge, 13 C.B. (N.S.) 430, 438 39 (Eng. C.P. 1863); Heath’s Garage, Ltd. v. Hodges, [1916] 2 K.B. 370, 375 84 (Eng. C.A.); Salmond, Salmond on Torts § 127, at 494, 500 (W.T.S. Stallybrass, Ed., 7th 1928).

[3] During the days of the Republic, the Texas Congress decided that livestock owners could allow their animals to run-at-large, and landowners wishing to sue for damages from trespassing livestock had to prove they had fulfilled their own duty to protect their property from at large livestock by erecting a proper fence; otherwise, their claims were barred. See Act approved Feb. 5, 1840, 4th Cong., R.S., § 2, 1840, Repub. Tex. Laws 179, 180, reprinted in 2 Gammel, The Laws of Texas 1822-1897, at 353-354 (Austin, Gammel Book Co. 1898).

[4] Tex. Const. Art. XVI, § 22. The framers added this provision in anticipation of the dramatic changes that would accompany the invention in 1873 of a new, inexpensive fencing material known as barbed wire. See Tex. Const. Art. XVI, § 22 interp. commentary (Vernon 1993) (describing the “remarkable foresight” of framers who “envisioned that this new material would have serious repercussions on the economy of Texas,” and describing subsequent “fence cutting war” that erupted in Texas in 1883).

[5] Clarendon Land, Inv. & Agency Co. v. McClelland, 86 Tex. 179, 23 S.W. 576 (Tex. 1893).

[6] McClelland, at 577, 78; see also Pace v. Potter, 85 Tex. 473, 22 S.W. 300, 301 (Tex. 1893) (“It is not contended that the rule of the common law, making it the duty of the owner of cattle to confine them to his own land, … was ever in force in this state. It is inapplicable to our situation and the customs and habits of the early settlers of the country, and inconsistent with our legislation in regard to fences and stock.”); Fennell v. Seguin St. Ry. Co., 70 Tex. 670, 8 S.W. 486, 486 87 (Tex. 1888) (“There is no general law in Texas prohibiting owners from permitting their cattle to run-at-large… [C]attle may lawfully run-at-large…”); Gholson v. Parrish, 92 S.W.2d 1113, 1114 (Tex. Civ. App. – Fort Worth 1936, no writ) (finding no duty to fence a public highway off from pasture lands used for grazing).

[7] Id; V.T.C.A., Agriculture Code § 143.101 (emphasis added); Beck v. Sheppard, 566 S.W.2d 569 (Tex. 1978); Britt v. Jones, 2009 WL 3000822, (Tex. Civ. App. – Houston [14th Dist.] 2009).

[8] See Beck v. Sheppard, 566 S.W.2d 569, 572-73 (Tex. 1978) (declining to presume that a horse owner was negligent under a predecessor to Agriculture Code § 143.102 because the owner had not “knowingly” allowed his horse to roam at large, but then analyzing whether the driver produced some evidence that the owner violated a “common law” duty to act with due care to keep his horse from escaping onto the highway); see also, Weaver v. Brink, 613 S.W.2d 581, 583-84 (Tex. Civ. App. – Waco 1981, writ ref’d n.r.e.) (after a truck hit a cow on an interstate highway, defendant was found negligent and liable because he knowingly maintained cattle behind fences unable to withstand rainfalls, and he knew or should have known the cattle had been loose several times at or near the highway).

[9] See Weddle v. Hudgins, 470 S.W.2d 218, 219 (Tex. Civ. App. – Tyler 1971, writ ref’d n.r.e.) (finding “a statutory basis” for civil liability for “knowingly” allowing cattle to roam at large on a farm to market road where a local stock law was in place); Hanna v. Wright, 504 S.W.2d 779, 782-83 (Tex. Civ. App. – Tyler 1974, no writ) (because the local stock law prohibition does not use the word “knowingly,” defendant could be liable to a driver on a public road for negligently failing to maintain all gates in place in an area that had adopted a local stock law); see, Op. Tex. Atty. Gen. No. H 795 (1976) (a violation of a local stock law occurs if cattle are at large on a county road “with their owner’s consent or through his negligence”); Cf. Warren v. Davis, 539 S.W.2d 907, 910 (Tex. Civ. App. – Corpus Christi 1976, no writ) (a livestock owner who apparently allowed a bull to escape through an unlocked gate in an area that had adopted a local stock law was liable to a driver on a farm to market road for “common law negligence”).

[10] Gibbs v. Jackson, 990 S.W.2d 745 (Tex. 1999) (specifically disapproving of Merendino v. Burrell, 923 S.W.2d 258, 261 (Tex. App. – Beaumont 1996, writ denied), and Miller v. Cozart, 394 S.W.2d 22, 24 (Tex. Civ. App. – Dallas 1965, no writ), to the extent that they hold that a person who owns or is otherwise responsible for horses has a duty to prevent the horses from roaming onto a farm to market road that is free from a local stock law); Ceniceros v. Pletcher, 2017 WL 2829325, (Tex. App. 2017).

[11] Id.

[12] Id.

[13] See Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993) (“We think it significant … that the legislature has considered and declined to create such a duty.”).

[14] Weaver v. Brink, 613 S.W.2d 581 (Tex. App. 1981).

[15] Evans v. Hendrix, 2011 WL 3621337 (Tex. App. 2011).

[16] V.T.C.A., Agriculture Code § 143.102.

[17] V.T.C.A., Agriculture Code § 143.101.

Mark A. Solomon

Mark A. Solomon is an insurance trial lawyer and the managing partner of Matthiesen, Wickert & Lehrer’s  Austin, Texas branch office. Mark is licensed to practice law in Texas and Colorado. Mark’s practice focuses on complex property and casualty subrogation, workers’ compensation subrogation, and automobile subrogation.

Gary L. Wickert

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has nearly four decades of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.