"Am I liable for damages from a car accident where someone hits my cow?" is the most frequently asked question I hear. And one that is the most difficult to answer, as discussed below.
In this article, part of a planned series, I will summarise the published decisions of British Columbia court cases about motor vehicle accidents involving livestock, to see what can be learned from them.
Liability of a livestock owner for damages can result from several sources:
These sources of liability will be explained and analysed in a future article—in summary, the normal rules of negligence apply to these motor vehicle accidents. A judge once said "what appears….to be required is the exercise of reasonable care to prevent [domestic animals not known to be dangerous] straying where their presence may create danger to users of the highway. What is reasonable care will depend on all the circumstances including particularly the nature of the highway and the amount and nature of the traffic on it."
To understand how court decisions are applied, we need to recognize that a principle of the common law system which Canada (except Quebec) inherited from Great Britain, is that the decision of a higher court binds a lower court, if the facts of the case are the same.
The hierarchy of courts in Canada is as follows:
To understand court outcomes, it’s essential to realize that court outcomes rely completely on the evidence. What facts are proved by evidence at trial? The outcome in some of the cases below results from a failure to provide evidence about some important facts.
One of the most common rancher concerns is liability that could exist for an accident involving cattle moving from Crown range onto a road, or through a neighbour’s property onto a road.
In Grifone v. Moline (BC Supreme Court 2005), Justice Humphries decided the case against the plaintiff because the plaintiff had failed to prove that the animal she hit was owned by the defendant. But in the reasons for judgment, Justice Humphries also said "There are other issues in this case, if I should find that the animal struck by Ms. Grifone was the bull belonging to Mr. Moline. The land on either side of the Grifone accident site is Crown land. Mr. Moline held a grazing permit for the land on one side of the highway. Issues arise as to the responsibility for an animal roaming at large on a highway adjacent to Crown range where the capacity to fence lies only with the Crown, and as to the relationship of the Livestock Act to animals on Crown range."
These questions did not need to be answered in Grifone v. Moline because the plaintiff did not prove that Mr. Moline owned the animal she hit.
While the decided cases may give some guidance, my view is that this question is not yet fully answered.
Let’s look at some cases of motor vehicle accidents involving livestock, from oldest to most recent.
A new horse, although gentle, was tethered with a halter and rope to a set of wooden steps on the owner’s property. The steps were heavily constructed and included three steps and a platform, set six inches in dried clay. The defendant owner was unable to move the steps. The horse, once tethered at 10 p.m., seemed perfectly happy. However later that night, perhaps having been scared by a bear, the horse whinnied and escaped, travelling "1 ¾ miles by country road, in a remote rural area", and got onto the Trans Canada Highway, where it travelled for a mile before being killed in the accident. It was still wearing the halter and part of the boards composing the steps. The owner had also taken immediate steps to recover the horse after hearing a disturbance and realizing the horse was gone. The horse owner was held not responsible for the accident.
The eight foals in question escaped from a corral through a doorway, through the barn, out into the barnyard and down the 150 foot driveway onto the Salmon Valley Road. The doorway from the barn into the corral was covered by a 4 x 8 sheet of plywood, nailed to some 2 x 6 cross members. The west edge was fastened to the barn by some wire in place of hinges. The east edge of the door opened, and was fastened to the barn by two pieces of rope which were tied together to secure the plywood. The livestock owner had checked the barn and the animals at about 8:30 on the night of the accident, and the foals were in the corral, the plywood door was closed and the rope latches were tied. A further visual barrier at the other end of the barn was in place. Immediately after the accident, the plywood door stood ajar; the wire hinges were secure but the rope latches were unfastened—not broken, just untied. The foals had been in the corral for three or four months without previously escaping.
The judge decided that the livestock owner had taken reasonable care to ensure his livestock were not capable of escaping and being at large, so was not liable for the damages from the accident.
Mr. Boesterd had checked his cattle on a 6.75 acre hobby farm in the Fraser Valley at 7 on the night before the accident. The Boesterds got up and went out to see what was going on sometime after midnight on the night of the accident, upon hearing a dog barking, seeing a Great Dane running away, and noticing a four-strand wire gate broken. The cattle had got onto the Trans Canada Highway through a four-strand wire gate and a five-strand barbed wire/cedar post perimeter fence, all of which were found by the judge to be in good repair, old but having been rebuilt before the accident.
Boesterds were found not responsible for the accident. The case was heard by then Chief Justice McEachern who said that "[n]otwithstanding the proximity of the highway, I do not think that the Boesterds were insurers of the safety of the public against the escape of cows in these circumstances.".
This was an accident involving some horses which escaped the Fabrick property. A ground slippage had occurred a month before the accident. The livestock owner was aware of the slippage but believed that the bank resulting from the slippage was too steep for livestock to get down. However the slippage had left a 10 foot gap under the fence in the exact location where the horses eventually escaped. The livestock owner had reported the slippage to the highways officials, who had inspected it and decided to do nothing, expecting the slope to hold without further slippage until the following spring. The judge decided that the highway official’s inspection was negligent and the Crown was responsible for the damages resulting from the accident to the tune of 25%.
The judge also found that the fence maintenance in general was not up to standard—a tree lay across part of the fence in one location where there was only a single strand of wire. Although the livestock owner tried to say that he and his wife and son had an inspection program, the judge did not accept their evidence on that point. 75% liability was assessed against the livestock owner.
The cattle involved in the accident which resulted in liability for the livestock owner, had not only escaped three or four previous times by going over or under the fence, but in this instance had escaped two weeks before the accident. The judge found the fencing to be inadequate, only three strands of wire in some areas and in poor repair. The gate was not locked with a padlock. There was no evidence of any third party involvement in releasing the cattle. The cattle owner—who did not even defend the claim—was fully liable for damages resulting from the accident.
The two horses involved in the accident escaped from land in the Vanderhoof area and got onto Highway 16. The judge found that the pasture was well and securely fenced and that Fawcetts took reasonable care to maintain the fences. Fawcetts had for some time had problems with intruders, mainly hunters, leaving the gates open. Fawcetts had tried locking the gates, but people just ripped the gate or fence down to get access. They posted signs "Please Close Gate" but trespassers still left the gates open. Fawcetts then developed a policy of regular inspection of the fencelines and gates. Throughout the year they checked the gates after weekends and holidays, and during hunting season one of them checked the gates every morning (except when making grain deliveries) and always checked the gates on weekends during hunting season. One of the Fawcetts had inspected the fence and gates on the Saturday and Sunday before the Tuesday accident. After the accident, the gates were found to be open and there were fresh 4 x 4 tracks and beer bottles. The judge decided that not only were Fawcetts not responsible because the accident had resulted from the action of a third party for whom they were not responsible, but also they had taken reasonable precautions to prevent the escape of the animals. No liability against livestock owner.
In this case the livestock owner avoided liability because the judge decided that the animals had not been under the control of the livestock owner, but rather a tenant who had assumed responsibility for their care. Liability was assessed against the tenant who had failed to ensure that a gate keeping the livestock in, was closed with something more durable than a hook and eye.
A vehicle collided with two horses at 5 a.m. on November 3, 1993. Both driver and passenger and one of the horses was injured; all recovered. The horse owner’s evidence was that there had been a windstorm the night before and she had checked both horses at about midnight the night before the accident, as the horses could be disturbed by wind. Both horses were in their stalls, which opened onto the outdoor riding arena, and were fine at the time of the check.
Police evidence was that on the morning of November 3rd, when they checked the arena, tracks showed that the horses had escaped through a gap in the fence of the outdoor arena, a narrow opening normally secured with some boards nailed together but which were not in place on the morning of November 3rd. The judge said "[t]o leave a gate open on a windy night on a property with direct access to a highway constitutes negligence." The horse owner was 100% liable for the damages from the accident.
Collyer was riding a horse at 10 at night, bareback, on a public road between one property and another, when it became agitated at some recycling boxes beside the road. She dismounted, the horse spooked, pulled the reins from her hands, and ran at top speed into a car, breaking the windshield and injuring the driver and passenger. The car was stopped or nearly so at the point of impact. The judge did not like Collyer’s evidence about how the accident came to take place, criticised her for dismounting and losing control of the horse, and ruled she was 100% liable for the damages from the accident.
The collision—as with so many of these accidents, on a dark night—occurred after the defendant Backus’ three horses had escaped from her property and been captured on a neighbour’s property. Backus had tried to return them to her property by leading one and expecting the other two horses to follow. One of the following horses spooked and ran across the highway. The judge said that this method of bringing the horses back to Backus’ property was negligent.
Backus then made immediate efforts, helped by neighbours, to recover the missing horse. These efforts included flashing vehicle lights to warn approaching drivers that there was a risk on the road ahead.
The judge held that the plaintiff had not slowed down in response to the warning. She ran into the horse, which had to be put down, totalled her vehicle and was injured herself.
The judge decided that, in the circumstances, the plaintiff was 2/3 liable for her own damages and that the defendant was 1/3 liable—"the larger part of the responsibility for this accident should fall, however, on the plaintiff".
This was an appeal from a Supreme Court decision in a jury trial in which the jury had determined that there was no negligence on those responsible for confining the horse (the horse owner and the owner of property where it was being kept). The horse got out, resulting in the accident.
The plaintiff in the case had consumed much alcohol and had a series of altercations that day, all of which inclined him to return from Campbell River to Nanaimo at midnight. Unfortunately he passed out and his passenger, Lowe, had to take over driving. Lowe had no driver’s licence and had also consumed some alcohol and virtually no food, although he was likely in better shape than the plaintiff. He took over driving back to Nanaimo more or less in self defense.
He collided with a horse which had escaped from a fenced area with a 4 foot high page wire fence on wooden fence posts, with an opening closed by a wooden cross bar and possibly three strands of rope across the opening below the cross bar. The evidence was that the bar and rope were in place when the horse was last fed, the day before the accident.
The Court of Appeal left the jury finding in place, no liability to the horse owner or property owner.
This case involved a collision in Delta BC which killed a Shetland pony. The plaintiff sued for the value of her pony.
The plaintiff and her son were leading four horses and the pony in a poorly lit area of road, in the dark, moving them from one pasture to another. The horses were haltered and were led with a lead rope but the pony was not on a lead and there was evidence the pony was following at a distance from the other horses. The son was waving a light in the air to warn drivers. There was no curb lane and there were ditches on each side of the road. There were warning signs with a horse symbol "slow while passing". No other measures were taken to ensure that a driver could see the horses.
The defendant drove into the back of the pony, which he did not see in the dark.
In the outcome, the judge held the pony owner 80% liable and the driver 20% liable, as he should have kept a proper lookout and had seen the flickering light.
This decision was of an appeal to Supreme Court of a Provincial Court decision. The accident took place in the early morning of January 12, 2000, near Fernie, BC. Mr. and Mrs. Savoy encountered three cows lined out across the road and Mr. Savoy hit one.
These cows had just been sold the previous afternoon to Mr. Fitzen by a neighbour.
Because the judge in Supreme Court found that no evidence was presented about how the cattle escaped, there was no basis to say that Mr. Fitzen intentionally or recklessly let the cows out or had not taken reasonable care in preparing to receive and keep the cows, and he escaped liability for the accident.
Discussed above. No liability on livestock owner as there was no persuasive evidence tendered to prove that the animal involved in the November accident was a bull owned by Molines. It could have been someone else’s bull or cow, or a moose, remains of which were found in the ditch near the accident site several months after the accident. The only bull of Molines that was not already accounted for, was involved in a subsequent accident the same night, in a nearby location, appeared to have damage from that accident only, and was put down at that site.
Mr. Wiebe collided with three cows on a rural road on a dark and rainy night in Abbotsford. The damage to his vehicle was about $4,000. None of the cows was apparently injured.
Mr. Schmidt said that the fence was a four-wire fence with appropriate fence spacing, and that he regularly checked the fence. The cattle escape had occurred when a limb from a large tree about 15 feet from the fence line broke off and landed on top of the barbed wire, which sagged, allowing the three cows to step over the fence. The tree was not rotten or dead and there was no indication that the branch was likely to break off.
The judge found that neither plaintiff nor defendant were at fault. There was no liability on either and no award of damages.
The case accounts give a flavour of what judges look at to sort out liability for motor vehicle accidents involving livestock.
The next article will explain the sources of liability in more detail, and a third will look at the "due diligence" defense under the Livestock Act.