Brauner v. Peterson

Washington Court of Appeals · Torts

TortsNegligenceRes Ipsa LoquiturLivestock on Highwayslivestockhighway collisioncow on highwaycommon-law duty

Facts

In the early evening of November 16, 1974, plaintiff was driving east on State Highway 904 in Spokane County when he struck defendants' Black Angus cow, which had strayed onto the highway. Plaintiff produced no evidence showing how the cow escaped from defendants' property. Plaintiff also produced no competent evidence establishing whether the accident site was in a stock-restricted area. The trial court found insufficient evidence that defendants were negligent in allowing the cow to be on the highway.

Issue

Does the unexplained presence of defendants' cow on a public highway at night permit or require an inference of defendants' negligence under common law, res ipsa loquitur, or RCW 47.32.130(1)?

Rule

Absent a statute to the contrary, the common law imposes no legal obligation on the owner of domestic animals to restrain them from being loose or unattended on a highway. Res ipsa loquitur does not apply unless the event is of a kind that ordinarily does not occur in the absence of negligence, and the mere presence of a cow on a highway does not satisfy that requirement because a cow can escape from adequate confines. Even when a permissible inference of negligence exists, the trier of fact is not required to draw it.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At dusk outside Yakima, Nina Flores struck a sheep owned by Owen Mercer on a county road. Nina proved only that the sheep belonged to Owen and had wandered onto the road; she offered no evidence of any applicable stock-restriction statute, broken enclosure, or prior escape history.

If Nina sues Owen for negligence and relies solely on the sheep's unexplained presence on the road, which is the strongest argument for Owen under the majority rule?

Explanation. The majority adopted the common-law rule that, absent a statute to the contrary, the owner of domestic animals is under no legal obligation to restrain them from being loose or unattended on a highway. Therefore, proof only that the sheep was on the road is insufficient to establish negligence.