Updated: Jul 7, 2020
This post should not be construed as legal advice.
Earlier this year, Ashley posted on liability from livestock escaping and recently, I posted on a court decision applying how a court might look at escaping livestock liability . One issue we did not consider was whether the doctrine of res ipsa loquitur could apply. Res ipsa loquitur is Latin for “the thing speaks for itself.”
In a traditional negligence case, the injured party must provide evidence to prove duty of care, breach of the duty, and proximate cause. With res ipsa loquitur, we infer the injured party has proved those three elements just from the fact the injured party was injured. For example, in Farm Services, Inc. v. Gonzales, the Texas Court of Appeals found that the sudden and unexpected discharge of a chemical by a crop duster did not normally occur in the absence of negligence and applied the doctrine of res ipsa loquitur.
In order for res ipsa loquitur to apply, three elements need to be proven:
The incident is one that ordinarily does not happen without the absence of negligence;
The instrumentality that produced the incident was under the exclusive control and management of the alleged wrongdoer; and
An absence of explanation by the alleged wrongdoer.
With these three elements in mind, let’s look at how courts have handled res ipsa loquitur in the context of livestock escaping.
In Roberts v. Weber & Sons, Co., a truck driver struck cattle that were in the middle of a state highway. Prior to escaping, the cattle had been confined to a pen constructed of 2-inch steel pipe posts in concrete and a 2-inch top rail. Testimony from the cattle owner was this was the most secure and expensive type of fencing available. The cattle escaped when the gate on the pen broke on the top hinge.
The Nebraska Supreme Court ruled that res ipsa loquitur could be applied in escaped livestock cases. In applying the three elements, the court found the first element was met from the cattle owner’s own testimony that cattle could not ordinarily escape a secure pen without negligence. The plaintiff had proven that the instrumentality (the pen in this case) was under the exclusive control of the cattle owner. With element three, both parties presented explanations of how the cattle could have escaped, but the court found the jury had enough evidence to agree with the plaintiff’s explanation.
At the other end of the spectrum is Brookover v. Roberts Enterprise, Inc. where the court found the doctrine of res ipsa loquitur did not apply. In Brookover, motorists struck cattle on a highway located in open range*. In this case, the court of appeals agreed with the trial court that res ipsa loquitur did not apply. The motorists had offered no evidence that a collision between a car and livestock on a highway running through open range did not ordinarily happen absent negligence. Other states, like Kansas, have failed to extend res ipsa loquitur to livestock escape cases because the court could not assume merely because livestock were out that the owner was negligent in how the livestock were confined (Harmon, 1997)
We have only scratched the surface on this issue with a couple of the more recent decisions involving res ipsa loquitur and escaping livestock. As I often point out, Maryland has not published an opinion looking at this issue but we see how a court in the state could potentially handle it. Courts could look at it from the standpoint of the Nebraska court with a state of the art and secure pen or from the Arizona or Kansas views. These decisions provide us with a potential road map for how we could handle this issue in Maryland.
If you have additional questions on Maryland’s fencing laws or livestock liability, check out Understanding Agricultural Liability: Maryland Fencing Law and Understanding Agricultural Liability: Livestock and Other Farm Animals.
*Arizona allows counties to designate “No-Fence” areas/open range. This does not relieve the livestock owner from liability when the livestock damage property. For more information on this, see Erik Glenn and Cori Dolan, Arizona’s Open Range “Law,” University of Arizona Cooperative Extension Publication, AZ1533 (2010).
Brookover v. Roberts Enter., Inc., 146 P.3d 1157 (Az. App. Ct. 2007).
Harmon v. Koch, 24 Kan.App.2d 149 (1997).
Roberts v. Weber & Sons, Co., 248 Neb. 243 (Neb. 1995).