The plaintiff Woods was injured when a car in which he was riding collided with a calf belonging to the defendant. Woods sued on the theory that the calf could not have found its way on the highway without negligence on the part of the defendant. This doctrine is called "res lipsa loquitur" or "the situation speaks for itself." The trial court rejected the application of that doctrine to animal/car collision cases. There was conflicting evidence as to whether defendant's calves had been found on the highway on prior occasions. Because the evidence was conflicting, the trial court ruled that the plaintiffs had not proven specific negligence by the defendant. The plaintiff appealed.
The Court of Appeals affirmed the judgment of the trial court. According to the Court of Appeals animals can escape from fenced confinement without the owner being negligent. Therefore, the doctrine of res ipse loquitur cannot be applied.
The plaintiffs, Carolyn M. Mitchell and her son, Bradley S. Woods, were driving in a vehicle on a dark country road when they collided with a calf owned by the defendant Joy Shallenberger. The plaintiffs separately sued Joy Shallenberger and Don Shallenberger for the personal injuries they allegedly sustained in the collision, basing their actions upon the doctrine of res ipsa loquitur. Joy moved for summary judgment. The trial court granted Joy's motion and dismissed the cases. The plaintiffs appeal to this court, and we affirm. Both cases involved identical issues, and therefore, they have been consolidated for purposes of briefing, argument, and opinion.
The depositions established that Don Shallenberger, Joy Shallenberger's son, took care of 24 cattle on Joy's land. Joy owned eight cows and eight calves, and Don and his two sons owned four cows and four calves. Don looked after the cattle for his father and, as compensation, received an uncertain share of the proceeds from the yearly calf sales. Joy admitted that he owned the 400-pound calf that was involved in the collision.
At the time of the accident, the cattle were kept in a drylot which is bounded on the east by a two-lane, gravel, country road. The drylot is surrounded by two fences. The first is an electric fence consisting of two strands of electrically charged wire, which strands are 18 inches apart. This fence encloses the entire lot with the exception of one section on the southeastern side where the gate is located. The distance between the bottom wire of the fence and the ground is 2 feet. The electric fence is approximately 3 feet high. The second fence on the eastern edge of the lot consists of boards and is approximately 6 to 7 feet high. At another location along the road, the wooden fence stands approximately 4 feet high. The portion of the second fence which surrounds the remainder of the drylot is composed of five strands of barbed wire. The record does not reveal the size of the drylot. Don testified that he checked the electric fence daily and visually inspected the other fences routinely.
On April 9, 1989, at about 8:30 p.m., Mitchell and Woods were traveling north on the country road. Mitchell testified in her deposition that she was traveling 40 m.p.h. She stated that although it was dark, the weather was clear. She also testified that she had her vehicle's headlights on. Woods saw the calf first and said, "There comes a cow." When Mitchell first saw the calf, it was running toward the right-front fender of her car. She slammed on her brakes and turned the car to the left. The calf hit the right- front fender of Mitchell's car. After the collision, she backed her car into Don's driveway and went up to his house to use the phone. One of Don's sons straightened the fender on Mitchell's car so that she could drive it.
After the collision, Don tested the electric portion of the fence to see if the electric charge was on, and he found that it was. He also checked to see if the gate was open, and he stated that it was not. He testified that he did not see any holes in the fence. Although Don examined the fence the day after the accident, he did not discover how the calf had gotten out.
Mitchell traveled on this road approximately one to three times per week during the 5 or 6 months preceding the accident. She testified that on more than 10 occasions, she had seen livestock outside of the enclosed area on this road. She stated that she had frequently seen dark-red cattle, which she believed to be Herefords, across from Don's driveway. Mitchell testified that her son-in-law, her daughter, the mail carrier, and another couple living near her daughter had all seen the Shallenbergers' cattle outside of the enclosed area near the road. Don testified that cattle had never gotten out of the drylot.
The plaintiffs each allege that Joy Shallenberger and Don Shallenberger were the owners of and were responsible for the care and control of the calf which was the cause of the collision. The plaintiffs prayed for judgment against both defendants, alleging both specific acts of negligence and the doctrine of res ipsa loquitur. Following Joy's motion to strike, the plaintiff filed an amended petition which contained only a claim based on res ipsa loquitur. Joy filed a demurrer, which was denied. He then filed an answer denying any negligence on his part and alleging contributory negligence. Contributory negligence, however, is not an issue in this appeal. The plaintiffs filed another amended petition, and after filing an answer to the amended petition, Joy filed a motion for summary judgment.
Don Shallenberger did not answer and is in default. The transcript does not show whether the plaintiffs sent Don a copy of either amended petition. The plaintiffs moved for a default judgment and sent Don notice of the hearing on the motion, which was set for April 5, 1991. The court took the motion for default under advisement.
On May 17, 1991, a hearing was held on Joy's motion for summary judgment. The court granted his motion for summary judgment and denied the plaintiffs' motion for default. The plaintiffs appealed to this court the granting of the motion for summary judgment, but did not appeal the denial of the motion for default judgment.
The plaintiffs allege that the trial court erred in (1) granting summary judgment when there were genuine issues of material fact and disputes concerning the inferences which could be drawn from the undisputed facts, and (2) not applying the doctrine of res ipsa loquitur.
In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Turek v. St. Elizabeth Comm. Health Ctr., 241 Neb. 467, 488 N.W.2d 567 (1992); Purbaugh v. Jurgensmeier, 240 Neb. 679, 483 N.W.2d 757 (1992); Murphy v. Spelts- Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992). Moreover, summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Abboud v. Michals, 241 Neb. 747, 491 N.W.2d 34 (1992); State v. Union Pacific RR. Co., 241 Neb. 675, 490 N.W.2d 461 (1992), modified in part on other grounds 242 Neb. 97, 429 N.W.2d 373; Bowley v. Village of Bennington, 241 Neb. 329, 488 N.W.2d 354 (1992).
In a conventional negligence case, the mere occurrence of an accident which causes an injury and does damage does not create a presumption of negligence or authorize an inference of negligence. Kliewer v. Wall Constr. Co., 229 Neb. 867, 429 N.W.2d 373 (1988). Res ipsa loquitur is a qualification of the general rule that negligence is not to be presumed. Security Ins. Co. v. Omaha Coca-Cola Bottling Co., 157 Neb. 923, 62 N.W.2d 127 (1954). If res ipsa loquitur applies, an inference of a defendant's negligence exists for submission to the fact finder. Anderson v. Service Merchandise Co., 240 Neb. 873, 485 N.W.2d 170 (1992).
In Anderson, the court restated the elements of res ipsa loquitur: "[W]hen an instrumentality under the exclusive control and management of the alleged wrongdoer produces an occurrence which would not, in the ordinary course of things, come to pass in the absence of the negligence of the one having such management and control, the occurrence itself, in the absence of explanation by the alleged wrongdoer, affords evidence that the occurrence arose as the result of the alleged wrongdoer's negligence...." Id. at 879, 485 N.W.2d at 175.
In Security Ins. Co. v. Omaha Coca-Cola Bottling Co., 157 Neb. 923, 925-26, 62 N.W.2d 127, 129 (1954), the Nebraska Supreme Court discussed the doctrine of res ipsa loquitur: The doctrine of res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel it. The doctrine is a rule of evidence and not a rule of substantive law. It is a qualification of the general rule that negligence is not to be presumed but must always be affirmatively proved. It merely takes the place of evidence as affecting the burden of proceeding with the case. When facts are adduced to which it has application an inference of negligence arises, that is, the thing speaks for itself. When facts are adduced to which it has application it then presents a question for the jury as to liability. The applicability of the doctrine always depends upon the particular facts and circumstances of each case. If res ipsa loquitur is inapplicable as a matter of law to the present case, there is no material question of fact regarding actionable negligence, and the summary judgments were proper dispositions of the plaintiffs' cases. See Anderson, supra. However, if res ipsa loquitur is applicable in light of the presentation at the hearing for summary judgments, the inference of negligence itself presents a question of material fact, and the summary judgments were improper. See id.
The plaintiffs contend that the court should have applied the doctrine of res ipsa loquitur. In their petitions, the plaintiffs alleged the following facts in support of the application of res ipsa loquitur to this case:
Plaintiff pleads and relies upon the doctrine of Res Ipsa Loquitur. This instrumentality causing the ... collision, injuries and damage, to wit, the calf owned by DEFENDANT SHALLENBERGER, was in the exclusive care and control of DEFENDANT SHALLENBERGER, and PLAINTIFF alleges that the presence of this calf on the roadway on the above date and time, after notice to the Defendant of previous similar occurrences, would not have happened without the negligence, of some type, of Defendant.
There is no question that the accident in this case was caused by an instrumentality within the exclusive control of the defendant Joy Shallenberger. Thus, the question becomes whether the accident is of a kind that ordinarily does not occur in the absence of a defendant's negligence.
The court in McCall v. St. Joseph's Hospital, 184 Neb. 1, 165 N.W.2d 85 (1969), found that the three situations in which negligence may be inferred, and thus an action for res ipsa loquitur may be sustained, are:
(1) When the act causing the injury is so palpably negligent that it may be inferred as a matter of law, i.e., leaving foreign objects ... in [a patient's] body ...; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries.
Id. at 5, 165 N.W.2d at 88 (1969) (quoting Horner v. Northern Pacific Beneficial Assn. Hospitals, Inc., 62 Wash. 2d 351, 382 P.2d 518 (1963)). It seems clear that a cow on the highway is not so palpably the result of negligence that negligence can be inferred, such as in the case of a surgeon who leaves a sponge in a patient's body. Nor have the plaintiffs submitted the testimony of an expert which would create an inference of negligence. Therefore, we must decide whether the general experience and observation of mankind teaches that cows do not escape from a fenced-in field and appear on a highway without negligence.
Nebraska has not previously applied the doctrine of res ipsa loquitur to cases involving collisions of vehicles and domestic animals on public roads. The Nebraska cases which involve a collision of a vehicle and a domestic animal have been pursued under a conventional negligence theory. However, these cases are instructive because they delineate the inferences the Nebraska Supreme Court has found can be derived from evidence of escaped domestic animals. In Countryman v. Ronspies, 180 Neb. 76, 141 N.W.2d 425 (1966), the defendant claimed that his motion for a directed verdict should have been sustained, as the evidence before the court established that while cattle had been seen outside his fence, and while he admitted that the cow hit by the plaintiff's vehicle was his own, there was no evidence to establish his negligence. The court found:
An inference may be drawn, largely from testimony of disinterested witnesses, that defendant's cattle were out; that he knew, or should have known about it; and that he made no effort to round them up and confine them. There was evidence from which reasonable minds might draw different conclusions as to whether or not defendant was negligent, and it would have been error to direct a verdict for the defendant.
Id. at 80, 141 N.W.2d at 428.
In Traill v. Ostermeier, 140 Neb. 432, 300 N.W. 375 (1941), the plaintiff claimed in her petition that the defendant knew his hogs were on a highway; that the defendant's hogs were unattended by him for more than 3 hours prior to the accident; and that though amply warned of the situation, the defendant negligently and carelessly failed to take possession of his hogs, knowing of the traffic upon the highway. The court found the holding in Drew v. Gross, 112 Ohio St. 485, 489, 147 N.E. 757, 758 (1925), applicable:
The owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned. The principal test, as to whether the owner is or is not negligent, is whether he could or could not reasonably have anticipated the occurrence which resulted in the injury. It is a question of fact for the jury whether an owner of horses who turns them loose unattended into a field adjacent to a much-traveled highway in the nighttime, the fence of which field is in such defective condition that the horses may easily stray out onto the highway, could have anticipated that one of the horses would stray out onto the highway and collide with an automobile thereon.
The plaintiffs rely upon the Eighth Circuit's decision in Nuclear Corporation of America v. Lang, 480 F.2d 990 (8th Cir. 1973), to support their contention that res ipsa loquitur should be applied to this case. In Lang, the trial court found a farmer negligent for damage to the plaintiff's truck following a collision between the farmer's heifer and the plaintiff's truck. The trial judge predicated liability on what he considered to be two independent and separate rationales. First, the court concluded that the farmer was negligent in leaving a gate open. Second, the court held that the farmer was liable by virtue of the doctrine of res ipsa loquitur. The U.S. Court of Appeals for the Eighth Circuit affirmed the trial court's judgment.
In Lang, the court stated that the application of res ipsa loquitur to a case involving a collision between a domestic animal and a vehicle on a public road necessarily compels the conclusion that an unattended animal does not usually escape its enclosure unless someone was negligent. The court further stated that embodied within this conclusion is the assumption that owners of domestic animals owe highway travelers a high degree of care to confine their animals to prevent them from being unattended upon the public highway. In fact, the higher the standard of care, the more compelling is the inference that someone was negligent.
However, 8 years after Lang, the Nebraska Supreme Court rejected a high-degree-of-care standard with respect to an owner's duty to confine livestock and restated the well- established duty of care applicable to owners of livestock in Nebraska:
The owner of domestic animals has the duty to exercise ordinary care to confine his livestock to prevent them from being unattended upon the public highway. The principal test is whether or not he should reasonably have foreseen that any of his livestock would be upon the highway and the occurrence of such an accident; and if the owner knows, or in the exercise of ordinary diligence, should have known that any of his livestock were unattended upon the highway, it is his duty to exercise ordinary care to round them up and confine them.
Dizco, Inc. v. Kenton, 210 Neb. 141, 142, 313 N.W.2d 268, 270 (1981). See, also, Countryman v. Ronspies, 180 Neb. 76, 141 N.W.2d 425 (1966); Traill, supra.
The Eighth Circuit's opinion in Lang is not binding upon us, even without of the Nebraska Supreme Court's opinion in Dizco, Inc. We do not adopt the plaintiffs' position that the doctrine of res ipsa loquitur can be used to establish the liability of an owner of a domestic animal when that animal is involved in a collision with a motor vehicle on a public way. Our decision is based upon the holdings in Dizco, Inc., Countryman, and Traill, which establish that reasonable minds can differ on whether there was negligence when a domestic animal escapes its confines and can also differ on the inapplicability of the higher standard of care for owners of domestic animals. Other states have judicially recognized the fact that cattle and other domestic animals may escape from perfectly adequate confines without negligence. See, Reed v. Molnar, 67 Ohio St. 2d 76, 423 N.E.2d 140 (1981); Barnes v. Frank, 28 Colo. App. 389, 472 P.2d 745 (1970); Wilson v. Rule, 169 Kan. 296, 219 P.2d 690 (1950). In Nebraska, an animal's escape from a lot or an enclosure is not such a departure from the ordinary course of events as to raise necessarily an inference of negligence.
Res ipsa loquitur is inapplicable as a matter of law to the present case. Without res ipsa loquitur, neither Mitchell nor Woods presented evidence of the Shallenbergers' negligence; therefore the district court properly granted summary judgment to Joy Shallenberger.
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