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1. Class #21 -- October 9, 2002 -- Chapter 8 , part II, pp. 206-215
-- Bonus Homework. #3 –Last Call!
Kundel, p. 202- Joshua Johnson & Kyle Kuehnert
Lindsey, p. 204 -Chris Lindborg & Drew Mellon
O’Gara, p.208– Jason Morehouse&Brian Myers
Ambrogini, p. 209 – Scott Priebe&Cale Russler
Grabenstein, p. 212 – Donald Shoemaker& Lee Stanish
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
How much fence is a landowner required to build, and what constitutes a partition fence.
5. Kundel Farms Facts
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 viewer’s 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 party’s 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.
If there is no fault with the fence, is the escaped animal owner strictly liable?
10. Lindsay Facts:
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 Def’s 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.
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.
14. 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 animal’s 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. O’Gara v. Kane App. Ct. of Ill. 5th Dist. 1976,
negligence for animal at large
Was the def/Kane liable for animals at large given the Illinois Statute?
17. O’Gara v. Kane Law:
18. O’Gara 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).
19. O’Gara 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.
20. O’Gara 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
negligence for animal at large
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?
22. Ambrogini v. Todd
23. Ambrogini Facts: pl’s 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 Todd’s conduct was for the jury to decide.
26. 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
Damages for loss of dog.
Did def lawfully kill the dog?
Or was it an act of retribution?
29. 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.
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.
32. 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.
33. Reimbursement for Dog Killings If the dog owner can be identified after the dog’s 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).
34. 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 farmer’s field.
5. A pit bull dog also has “one free bite.”