Livestock/Automobile Collision Case – No Liability Where There’s No Proof That Livestock Owner Negligent - Kansas

August 28, 2011 | Erin Herbold-Swalwell


The plaintiffs were injured when the car they were driving struck a horse that had escaped from the defendant’s pasture. The plaintiffs alleged that the defendant’s negligent failure to inspect and maintain his fence was the cause of their injuries.  The defendant kept two horses and 42 head of cattle in a fenced-in enclosure on his property. The fence was built in 1999 and was composed of four sections of barbed wire strung between steel “T-posts” and wooden fence posts. Additionally, the defendant installed an electric fence inside the section bordering the highway for additional protection. A year before the accident, a contractor installed a pipeline on the defendant’s property, creating a trench and changing the flow of water on the defendant’s land. The water runoff caused unexpected erosion between two of the fence posts bordering the highway and loosened them. When the defendant noticed the problem upon routine inspection, he “drove them into the ground as far as he could and then set them in concrete.” At the time, the remaining fence posts were secure.

On the night of the accident, the defendant returned from work and noticed his livestock had escaped. The defendant was attempting to corral the animals when the plaintiffs’ vehicle struck one of his horses as it crossed the road on its way back to the pasture.  After the accident, the defendant found a hole in the fence approximately 50 feet from the spot where he made the earlier repairs. The defendant permanently repaired the hole after the accident.  The defendant attributed the hole to the heavy rainfall and resulting runoff from earlier in the day.

At trial, the defendant testified that he had checked the fence one or two days before the accident and didn’t notice any problems. The defendant stated that his routine was to visually inspect the perimeter fence every two days. The trial court granted the defendant’s motion for summary judgment, finding that the plaintiffs failed to present any evidence showing that the defendant failed to exercise due care in maintaining his fence and keeping his livestock confined.  That’s the applicable standard of care in Kansas.  In Kansas, livestock owners are not automatically deemed to be negligent simply because their animals escape a fenced enclosure and cause damage.  Kansas courts do not allow the doctrine of res ipsa loquitur to be applied in livestock trespass cases. Instead, the injured party must prove that the livestock owner was negligent.

The plaintiffs argued that the defendant had a duty to physically inspect each fence post and should have been aware of the erosion problem. However, the plaintiffs cited no legal authority for this assumption. Kansas courts have routinely held that visual inspection of fencing is adequate. The defendant employed a reasonable inspection method, never had problems with escaping livestock prior to the actions and could not control factors such as heavy rainfall and damaging erosion. The appellate court affirmed the trial court’s grant of summary judgment in this case. Jewett v. Miller, Nos. 105,020, 105,021, 2011 Kan. App. LEXIS 120 (Kan. Ct. App. Aug. 26, 2011)