By: Jeffrey Lapin
Ogallala State Sen. Ken Schilz, in LB 1021, wants to require motorists who collide with livestock to have to prove specific acts of negligence on the part of the cow’s owner before they can recover for their injuries. This would be a significant change in Nebraska law. It also would make it virtually impossible for an injured motorist to win a case against a livestock owner.
ANIMAL ACCIDENT STATISTICS
According to the Nebraska Department of Roads 2010 Traffic Crash Facts Annual Report, in 2010 there were 3,497 crashes involving animals, with 2 fatalities and 235 injuries. (Report available here: http://www.dor.state.ne.us/highway-safety/docs/facts2010.pdf). These numbers are slightly lower than the statistics for 2009. The Report does not break down the type of animal involved but does state the majority of vehicle-animal collisions involved deer.
Sen. Schilz wants to modify Nebraska Revised Statute § 25-21,274, which currently reads:
(1) In any civil action brought by the owner, operator, or occupant of a motor vehicle or by his or her personal representative or assignee or by the owner of the livestock for damages resulting from collision of a motor vehicle with any domestic animal or animals on a public highway, the following shall apply:
(a) The plaintiff’s burden of proving his or her case shall not shift at any time to the defendant;
(b) The fact of escaped livestock is not, by itself, sufficient to raise an inference of negligence against the defendant; and
(c) The standard of care shall be according to principles of ordinary negligence and shall not be strict or absolute liability.
LB 1021 would change subsection (b) to:
The fact of escaped livestock without evidence of specific acts of negligence is not sufficient to raise an inference of negligence against the defendant.
The full text of the amendment can be located on the State of Nebraska’s website here.
On February 8, 2012, Sen. Schilz told the Legislature’s Judiciary Committee:
“As a cattle feeder myself, I know how important it is to maintain good fences . . . But there are many times when cattle escape without the negligence of the owner.”
He added that cattle can jump fences, push down fences and unlock gates on their own. (Source: Journal Star). The Nebraska Cattlemen’s Association is supporting the bill.
WHY THE BILL SHOULD NOT PASS
It is often difficult to prove specific acts of negligence in escaped livestock cases. Cattle usually escape their pen when no one is present so how they got out is usually not known. Because of this, motorists can use the legal doctrine of “res ipsa loquitur”, which allows an inference of negligence against the owner of the cattle when certain requirements are met to help prove liability. “Res ipsa loquitur” is a Latin phrase that literally means “The thing speaks for itself.” To be able to use “res ipsa loquitur” in a case an injured person must established all of the following:
(1) The occurrence must be one which would not, in the ordinary course of things, happen in the absence of negligence;
(2) The instrumentality which produces the occurrence must be under the exclusive control and management of the alleged wrongdoer; and
(3) There must be an absence of explanation by the alleged wrongdoer.
It is usually elements 1 and 3 that are the hardest to prove. In addition, an injured person must have evidence beyond this as the statute does not permit the mere fact of escape, by itself, for the owner to be liable. Evidence that can help establish liability include: the type of fence and/or pen the cattle were kept in; whether the type of fencing and/or pen is commonly used in the cattle industry; how often as well as the last time the fencing and/or pen was inspected; and the condition of the fence at the time the livestock escaped.
Even under current law winning a case in a vehicle-livestock collision is difficult. Sen. Schilz’ bill would eliminate the doctrine of res ipsa loquitur in these types of collisions. As such, injured persons could not rely on inferring negligence but would have to establish what the livestock’s owner specifically did wrong, which in most cases may be impossible to prove.
WHAT YOU SHOULD DO
The law already offers sufficient protection to livestock owners. LB 1021 would significantly tip the balance in favor of owner over injured persons. Motorists are urged to contact their Nebraska state senator and request they oppose LB 1021.
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ABOUT LAPIN LAW OFFICES
Lapin Law Offices represents drivers and passengers involved in collisions with escaped cows. If you have been injured in a motor vehicle collision please give us a call at 402-421-8033 (24/7) or contact us through our website: LapinLawOffices.com.