Angry Cow Attacks Motorcycle, Court Throws Out Motorcyclist’s Lawsuit Lessons for Property Owners and Inadvertent Cow Agitators

by Tamara Rider

On May 29, 2012, the California Court of Appeal issued an opinion of interest to cattle owners and landowners.  The Court of Appeal affirmed a trial court’s ruling throwing out a lawsuit brought by a motorcyclist who alleged that a cow owner and a landowner had a legal duty to protect him from an angry pregnant cow.  (Thomas v. Stenberg (Cal. Ct. App., May 29, 2012, A132431) 2012 WL 1925657.)

“Annie” the cow charged the plaintiff, Mr. Thomas, while he was riding his motorcycle along a private road that crossed over the defendants’ property.  Even though Thomas had driven on the private road thousands of times for 30 years prior without incident, on the day of the accident defendants’ cow, who turned out to be pregnant, was apparently in a bad mood.  She put her head down and crashed into the moving motorcycle.  Thomas was thrown over the handlebars and landed on his left shoulder.  Thomas suffered a shoulder injury and needed surgery.  His motorcycle skidded on its side down the road, causing so much damage to the motorcycle that it was not worth repairing.  Annie was walking with a limp after the crash, and later miscarried and lost her calf.

Thomas sued the cow’s owner, the landowners and the livestock company which managed the cattle on the property.  He alleged negligence and premises liability.

The evidence established that Annie was an Angus cow and was one of the 75 Angus cows owned by the landowner.  The landowner claimed that he was not aware of any prior occasions where any of his cattle had attacked anyone.  An expert on cows testified for Thomas and revealed that the temperament and behavior among cattle varies from cow to cow.  The expert stated that Angus cows tend to be less docile than dairy cattle, but the expert admitted he had never seen Annie and could not attest to whether Annie was habitually gentle or aggressive.

The private road where the accident occurred was an easement which, coincidentally, was owned by the plaintiff’s aunt, her husband, and another landowner.  Evidence also showed that plaintiff’s relatives did not get along with defendants, and that they did not offer to pay for fencing costs when defendants asked for a contribution.

In its opinion, the Court considered the extent of the legal duty owed to third parties on a private road (which, was actually an easement not created nor controlled by the defendants).  The Court upheld the trial court’s ruling that “while there is a duty to prevent livestock from entering a public road, there is no commensurate duty to prevent them from accessing a private driveway that other people have the right to use.”

No Negligence When No Control over Property:
In analyzing the plaintiff’s negligence cause of action, that court stated that plaintiff was required to prove: “(1) the defendant owed plaintiff a legal duty, (2) the defendant breached that duty, and (3) the breach proximately or legally caused (4) the plaintiff’s damages or injuries.”  ” ‘Under general negligence principles, … a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor’s conduct.’ “  The Court examined another California Appellate Court decision, Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, and held that while defendants did own the underlying property, they do not own the easement and did not have a right to control the road and the potential risk of harm that may arise on the road.  Quoting from Codi, the Court said “the law ‘does not impose responsibility where there is no duty because of the absence of a right to control.’ ”

No Strict Liability for Docile Cow:
As for plaintiff’s allegations that defendants were liable under a theory of strict liability as the owners of Annie because defendants knew or should have to known of Annie’s dangerous propensities, the court disagreed.  The Court stated: ” ‘The doctrine of strict liability for harm done by animals has developed along two separate and independent lines: (1) Strict liability for damages by trespassing livestock, and (2) strict liability apart from trespass (a) for damages by animals of a species regarded as inherently dangerous, and (b) for damages by animals of a species not so regarded but which, in the particular case, possess dangerous propensities which were or should have been known to the possessor.’ “  The Court determined that Angus cows were not inherently dangerous, that the defendants did not have actual or constructive knowledge of Annie’s tendencies, and that there was no evidence that a reasonable rancher in defendants’ shoes would have prevented his cows from grazing in the unfenced pasture alongside the private road.

No Statutory Duty to Manage the Cow on Private Road:
Finally, the Court looked at defendants duty to keep the highway clear under Food and Agricultural Code section 16904 and Civil Code 1714 which stand “for the proposition that cattle owners are not exempt from a duty to exercise ordinary care or skill in the management of their property.”  After considering these statutes and the case law which plaintiff primarily relied, Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, the Court held that its research on vehicular accidents and livestock mostly involved public road contracts.  Here, on the other hand, plaintiff’s facts involved a private road and an easement whose owners failed to take any corrective or fencing measures for the grazing cattle.

Lessons for Motorcyclists and Landowners:
For all of the motorcyclists out there, be particularly careful on those private roads.  Avoid moving livestock.  And try not to make cows mad!  You may be unable to seek a remedy in court if you are injured in an accident which you did not cause.

As for land and easement owners, if you create or control a potential hazard related to your easement, you may owe a duty to third parties to protect them from those potential hazards, including cows and other animals.

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