Class

1
Class 21 -- October 9, 2002

• -- Chapter 8 , part II, pp. 206-215
• -- Bonus Homework. 3 Last Call!
• Recitation
• Cases Student
• Kundel, p. 202- Joshua Johnson Kyle Kuehnert
• Lindsey, p. 204 -Chris Lindborg Drew Mellon
• OGara, p.208 Jason MorehouseBrian Myers
• Ambrogini, p. 209 Scott PriebeCale Russler
• Grabenstein, p. 212 Donald Shoemaker Lee
  Stanish
• 1

2
Liability for Animals

• Absolute Liability for all injuries caused?
• The modern Indiana cases, and elsewhere, indicate
  a landowner or tenant may not be liable for
  damage, such as an auto hitting a cow,
• as long as the landowner or tenant can show his
  fence has been maintained, and not negligent in
  the escape
• and makes immediate attempts to retake the
  animal(s).

3
Liability for Escaped Animals

• An old Illinois case suggests (in dictum) there
  is a condition to satisfy before a farmer can
  collect for damages if the animals came through a
  line fence.
• The injured farmer may be required to show that
  his half of the fence was not the escape way
  for the animals.

4
Kundel Farms v. Vir-JO Farms, Inc. Ct. of App.
Iowa, 1991

• Action?
• To build fence
• Issue?
• How much fence is a landowner required to build,
  and what constitutes a partition fence.
• Facts

5
Kundel Farms

• Facts
• Holding
• Law/Rule

6
Kundel Farms

• Facts Pl and def were adjoining landowners.
• They had a partition fence dispute.
• Fence viewers ruled that plaintiff should build
  100 rods of fence and def was to build 116 rods.
• Def repaired all the fence including 50 rods pl
  argued was solely on its property, and not
  under the fence viewers jurisdiction.
• Trial court upheld the fence viewers
  ruling.

7
Kundel Farms

• Holding Reversed the trial court.
• Fence viewers were commanded to divide the
  responsibility according to Ch. 13 of the Iowa
  law.
• A partition fence is suppose to be on the
  property line.
  
  

8
Kundel Farms

• Holding The law requires adjoining landowners
  share in the maintenance of partition fences.
• However, 113.17 does not apply to fences wholly
  on one partys property which have no relation
  with the boundaries of the adjoining properties.
  

9
Lindsay v. Cobb, Ct. of App. Kan.1981

• Action?
• For damages by an escaped animal.
• Issue?
• If there is no fault with the fence, is the
  escaped animal owner strictly liable?
• Facts

10
Lindsay

• Facts
• Holding
• Law/Rule

11
Lindsay

• Facts Pl and def were adjoining landowners.
• They maintained the entire line fence between
  them.
• Pl seeks damages to his bull caused by Defs
  escaped bull.
• They found no escape holes in their fence.
• Trial court held that the def was strictly liable
  for damages from a trespass animal on property of
  one protected by a legal fence.

12
Lindsay

• Holding Upheld the trial court.
• At common law an animal owner is held strictly
  liable for all damages of an escaped animal.
• In this case, there is injury to a party
  surrounded by a lawful fence.
• The escaped animal owner is liable.

13
Trespassing AnimalsOptions

• You may do anything reasonable
• drive them back to their own field,
• necessary force may be used,
• and, owner may not complain.
• The law does not tolerate greater force than is
  necessary.
• Animals may be confined, and fed until retrieved
• by their owner.
• Damages may be demanded prior to release
• including feed and costs of care.
  

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What are Estrays and Taker up rules?

• Definition Domestic animals of unknown ownership
  running at large.
• They may be taken-up by a landowner.
• Generally, there is a duty to attempt to find the
  owner.
• Costs may be recovered when the rightful owner
  claims an estray(s).
• If no rightful owner claims them the taker-up may
  keep the animal(s).

15
Animals on the Highway

• Roadway collisions with animals often results in
• liability of the animals owner.
• Owner is liable if
• he is negligent in his fence maintenance, or
• there are good fences, but animals have a habit
  of breaking out, or
• there are good fence, and animals not in habit of
  
• getting out, but owner knew of escape, and was
  not diligent in retrieving the animals.

16
OGara v. Kane

• App. Ct. of Ill. 5th Dist. 1976,
• Action?
• negligence for animal at large
• Issue?
• Was the def/Kane liable for animals at large
  given the Illinois Statute?
• Facts

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OGara v. Kane

• Law
• Holding

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OGara

• Facts pl was injured when the car he was in hit
  a horse.
• Fence had been rebuilt recently.
• There was a directed verdict for def (pl failed
  to make a case).

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OGara

• Law unlawful for any horse to run at large
  Provided, that no owner or keeper of animals
  shall be liable for damages in any civil suit
  for injury caused by running at large when such
  owner can establish that he used reasonable care
  in restraining animals.
• 
  

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OGara v. Kane

• Holding Lower court upheld.
• The only evidence the pl had was that a person
  testified that he thought he had seen horses
  out before.
• The def established he had been diligent in
  maintaining his fence, and he was not aware that
  the horses were at large at the time of the
  injury.

21
Ambrogini v. Todd

• S. Ct. of Mont., 83
• Action?
• negligence for animal at large
• Issue?
• Did the defendant, Sonny Todd, have a legal duty
  to construct and maintain a fence to prevent
  livestock from entering the highway?
• Is there sufficient evidence that Todd was
  negligent? Is leaving the lane gate open
  negligence?
• Facts

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Ambrogini v. Todd

• Holding
• Law/Rule

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Ambrogini

• Facts pls truck collided with two angus calves
  on Hwy 10 in 1979.
• In 1936, the State of Montana had paid the prior
  owners to construct a fence along the Hwy
  right-of-way as part of the acquisition of an
  easement.
• Current owner, Todd, had maintained the fence and
  kept a stock gate at the entrance.
• The gate was a nuisance to his customers who
  came to buy cattle and horses.

24
Ambrogini

• Facts
• Todd installed a lane fence, and a gate at the
  ranch parking lot to negate the need for a stock
  gate.
• Cattle broke through a barnyard fence, and found
  the gate open and escaped to the Hwy 10
• The trial court held for Todd

25
Ambrogini

• Law Holding case remanded for trial.
  Generally, an open range area designation
  allows animals at large without liability to the
  owner.
• A statute made it unlawful to graze cattle on the
  right of way of fenced state and federal
  highways, but
• Law now is, the rancher must be shown to have
  been negligent if livestock cause and accident
  on the roadway.
• The court does not feel there is evidence of
  negligence -- and, reasonableness of Todds
  conduct was for the jury to decide.

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Right to Kill Dogs Injuring or Killing Livestock

• Absent a statutory privilege, a landowner may not
  harm a trespassing dog.
• Common law allows necessary force including to
  kill a dog in defense of family, person or
  property.
• States including Indiana have statutes allowing
  the killing of a dog caught killing livestock
  (see Dog Law HO)
• Can you kill the dog that pesters livestock?
  

27
Grabenstien v. Sunsted

• S. Ct. of Mont. 89
• Action?
• Damages for loss of dog.
• Issue?
• Did def lawfully kill the dog?
• Or was it an act of retribution?

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Grabenstien

• Facts
• Holding
• Rule

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Grabenstien

• Facts
• Sunsted caught a dog among dead chickens, and
  cornering the last live chicken in the pen
• Sunsted shot and killed the dog, and
• reported it to the sheriff
• Pl identified Duke as their dog, and sought
  damages
• for the loss of their dog.
• Trial court held for Sunsted.

30
Grabenstien

• Law to kill the dog is okay, if there is
  reasonable cause to believe the injury could not
  otherwise have been prevented.

31
Grabenstien

• Holding Affirmed--for def.
• While Duke was supposedly a gentle dog that could
  as well sleep with the chickens according to
  the pl.
• Def had no reason to believe the dog was
  gentle.
• Pl argued that the dog could only take one more
  2.50 chicken, therefore killing the dog was
  retribution! Vengeance!
• District court did not find vengeance.
  

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Killing Game Animals that Damage Crops

• Common law apparently would permit the taking of
  game animals doing damage if the state or
  appropriate agency could not provide timely
  relief.
• In Indiana, there are statutes and regulatory
  procedures to allow taking of game doing damage.
• Approval of DNR officers is required.

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Reimbursement for Dog Killings

• If the dog owner can be identified after the
  dogs killing, they are liable.
• Owners are seldom found for the dog at fault.
• Triple damages may be obtained.
• Indiana has a reimbursement law for livestock
  killed by dogs which is funded from the dog tax
  (see Dog Law HO).

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Quiz 7

• 1. Generally, at common law a dog has one free
  bite.
• 2. A farmer who has taken up an escaped animal
  has no obligation to return the animal to the
  rightful owner.
• 3. Under open range law, a stock owner may only
  be liable if he or she is negligent.
• 4. A railroad may have to build all the fence
  along the rail right of way to enclose a farmers
  field.
• 5. A pit bull dog also has one free bite.