There was an interesting article on page 5 of the May 16, 2011 edition of County Folks by Jay Girvin, Esq. of Girvin & Ferlazzo, P.C. about whether a livestock owners can be held liable if their animal wanders off their farm and causes a highway accident. You can review the full article online here. Mr. Girvin accurately noted that “[u]nder certain circumstances, the owner of a domestic animal may be held civilly liable under New York State common law for personal injuries or property damage resulting from an accident caused by the animal wandering onto a public highway.”
Girvin’s article notes the two different tort theories that New York courts use to determine liability including strict liability and negligence. If the court uses a strict liability theory then the owner will be liable for damages if the plaintiff proves that the animal had a “‘propensity’ to wander off the property and the owner was aware of that propensity.” On the other hand, if court’s apply a negligence theory then the owner will be liable “if he or she both knew or had reason to know of the animal’s propensity to wander and failed to take reasonable steps to prevent the animal from wandering.” The livestock owner would have the duty in those cases to provide “affirmative proof showing the reasonable steps taken to prevent the animal from wandering.”
Many Western states are “fence out” states — i.e., the property owner has the duty to “fence out” livestock from their property (or at least some types of livestock such as cattle and bison). When driving through Wyoming, Colorado, and New Mexico, a driver in a rural area might see a cattle crossing sign or a warning that livestock may be on the highway. I loved my time living in Montana – it seemed so foreign to me to see cattle guards on the interstate. Midwestern and Eastern states take a diametrically opposite view due to our more dense population– we have “fence in” laws where livestock owners have the affirmative duty to “fence in” their livestock on their property.
I grew up on a farm so I understand that it is unrealistic to assume that livestock will never wander off the property. (I’m trying to resist the urge to write about a few entertaining family stories…). However, this is no laughing matter because livestock owners can incur serious civil liability from livestock that wander on highways and cause accidents. If you have an issue with livestock that repeatedly wander off your property, I highly suggest speaking to a professional about this issue such as an extension specialist. Once proper fencing is installed, a livestock owner should periodically inspect the fencing “to note any breakage or gaps” that need repaired.