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More On Livestock Escaping: Whitby v. Wright

Updated: Jul 7, 2020

Cows crowded on dirt (Photo by Edwin Remsberg).

This post should not be construed as legal advice.

Earlier this year, Ashley posted on liability for livestock escaping in Do Your Cows Get Out in the Middle of the Night? You’ll Want to Read This One!. In it, she covers how a livestock escaping case involving negligence might work. This post will not repeat covering those issues, but highlight them involving a recent court decision out of Michigan.

In Whitby v. Wright, a livestock owner’s cattle escaped from a large lot surrounded by a five-strand electric fence and a double gate. Whitby was driving by and attempted to get the cattle back in the lot. One cow charged Whitby and he was injured. Whitby sued the livestock owner Wright for negligence, among other things. At trial, the court agreed that Whitby had not established that Wright owed Whitby a duty of care when the cow injured him.

Silo in front of a farm (Photo by Edwin Remsberg).

On appeal, the court agreed with Whitby that Wright owed Whitby a duty to use due care in containing his livestock. The court disagreed with Whitby on how to define the foreseeability of the injury. Whitby thought the standard should be: could the defendant foresee the specific injury? The court ruled the standard was: could the defendant (Wright in this case) foresee the risks associated with specific conduct, in this case fencing in cattle? In this case, it was reasonably foreseeable that if Wright did not use adequate fencing then Whitby could be injured.

The problem with Whitby’s case was he provided no evidence of Wright’s breach of duty by not using adequate fencing. Whitby argued he had shown adequate evidence under the doctrine of res ipsa loquitur. Res ipsa loquitur is Latin for “the thing speaks for itself” and means the accident does not typically arise without negligence. See Quick Overview of Pesticide Drift Liability for more details on res ipsa loquitur. The court disagreed that Whitby had produced any evidence to demonstrate that res ipsa loquitur applied. To the court, Whitby had done nothing to demonstrate that this event (cattle escaping) did not normally happen absent negligence. For those reasons, the court affirmed the trial court decision.

Why should you care about a court decision out of Michigan? The case highlights many issues a Maryland court would consider in a livestock escaping case. Escaping livestock cases require showing that the owner breached the duty of care owed. Demonstrating this breach will require showing that the livestock were held by inadequate fencing, a history of escaping, etc. This will not always be easy for an injured party to demonstrate. As the court highlights here, Whitby did nothing to demonstrate the duty was breached.

Fact Sheet about understanding agricultural liability.

Another point to highlight is that the doctrine of res ipsa loquitur requires evidence to establish. The Michigan court wanted a demonstration that cattle do not normally escape without the absence of negligence. As folks who have raised cattle know, when cattle get spooked there is very little that will stop them, even the best of fences. In this case, previous escapes had occurred due to coyotes scaring the calves and causing them to crash through a gate. As this case highlights, wildlife spooking livestock is one way livestock can escape without negligence being present. The states are split in applying the doctrine of res ipsa loquitur to livestock escape cases, but that distinction is another post; stay tuned.

If you have additional questions on livestock liability, check out Understanding Agricultural Liability: Livestock and Other Farm Animals.

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