Am I Liable for an Accident Involving a Car Hitting a Cow in the Road in Texas?
Full Question:
Answer:
The answer will be a matter of subjective determination for the court, based on all the facts and circumstances involved. Accidents are governed by tort law, which requires finding a person negligent in causing foreseeable harm in order to be held liable.
Texas law requires an owner to prevent livestock from straying onto roads. When there is an auto accident involving a stray cow, an inference of the owner's negligence in causing the accident is allowed. However, this inference may be disproved by showing that the owner used care in preventing the animal from straying.
Please see the following TX statutes:
§ 143.102 AGRIC. Running at Large on Highway Prohibited
A person who owns or has responsibility for the control of a horse,
mule, donkey, cow, bull, steer, hog, sheep, or goat may not knowingly
permit the animal to traverse or roam at large, unattended, on the
right-of-way of a highway.
§ 143.103 AGRIC. Immunity from Liability
A person whose vehicle strikes, kills, injures, or damages an
unattended animal running at large on a highway is not liable for damages
to the animal except on a finding of:
(1) gross negligence in the operation of the vehicle; or
(2) wilful intent to strike, kill, injure, or damage the animal.
Please see the following TX case law:
PROPERTIES, LTD., LABELLE GENERAL, L.L.C., WILLIAM & OPAL DOORNBOS
TRUST, Appellees.
No. 09-09-00055-CV
Court of Appeals of Texas, Ninth District, Beaumont.
Submitted on December 11, 2009.
Opinion Delivered February 4, 2010.
On Appeal from the 136th District Court Jefferson County, Texas,
Trial Cause No. D-180,417.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
OPINION
HOLLIS HORTON, Justice.
This is an appeal from the trial court's order granting the
appellees' no-evidence motions for summary judgment. We affirm.
Background
On the night of July 5, 2002, LaShonda Rose drove a car
that struck a black bull on State Highway 87. Rose and her three
minor passengers, C.D., K.D., [fn1] and R.C., were injured in the
collision.
On September 27, 2007, C.D., K.D., and R.C. ("the Minors") sued
the landowner-defendants ("the Landowners"). In their petition, the
Minors alleged that the bull had escaped from property owned by the
Landowners, and that the Landowners were negligent in permitting the
bull to roam at large. The Minors also alleged that the Landowners
negligently failed to ensure that the gates on the premises were
locked and failed to install cattle guards at the pasture's gate.
After answering the Minors' suit, the Landowners[fn2]-Labelle
Properties, Ltd.; Labelle General L.L.C.; Ben C. Hebert Heirs;
Hebert-Green, L.L.P.; C. Doornbos, Inc.; C. Doornbos Heirs; and the
William & Opal Doornbos Trust-filed no-evidence motions for summary
judgment. Each of the Landowners' respective motions for summary
judgment assert there is no evidence of a duty to the
Minors, no evidence of any breach of any duty to the Minors,
and no evidence that any of their acts proximately caused the
Minors' injuries.
Several facts are not disputed in this appeal. At the time of the
collision, the pasture from which the bull allegedly escaped was
leased by the Landowners to H.C. Youmans.[fn3] Additionally, the
Landowners did not own the bull involved in the collision.
The parties also do not dispute that under Texas common law, there
is no duty to restrain livestock. Even though there
is no duty at common law, the parties agree that Texas statutes
may create personal duties to restrain livestock. See Gibbs v.
Jackson, 990 S.W.2d 745, 747-50 (Tex. 1999) (declining to adopt a
general common law duty to ensure that livestock do not stray onto
farm-to-market roadways, but considering possible statutes
that could create such a duty).
The Minors' summary judgment evidence includes two leases between
Youmans and the families that jointly own the pasture. The Minors'
brief, however, refers only to one of the two leases, the Doornbos
lease.[fn4] The Doornbos lease provides, in pertinent part:
ARTICLE 4. USE OF PREMISES AND RESTRICTIONS
1. Lessee shall have the right to graze cattle
and other livestock, and Lessor specifically
reserves the full use of the premises for any and
all purpose(s) other than those for which same
are specifically leased to Lessee. (For example,
Lessor reserves the hunting and trapping rights
and the right to lease the premises for hunting
and trapping.) This lease shall be subservient to
the exercise by Lessor and Lessors' other tenants
of all other rights, and Lessee's rights
hereunder are and shall be subordinate to any
other leases or permits presently existing or
which may during the term hereof be granted by
Lessor.
2. Lessee shall not be allowed to do any hunting
or trapping on said premises.
3. During the term of this lease, Lessee agrees
to maintain all roads, fences, pens, gates,
sheds, and other improvements on the premises
and, upon termination thereof, to return same to
Lessor in as good condition as presently exists.
4. Lessee will patrol and protect the leased
premises against trespassers.
5. Lessee will not make or allow any unlawful,
improper, or offensive use to be made of said
premises and will execute, comply with, and
fulfill all laws, orders, and requirements
imposed by all governmental authorities and
agencies applicable to the use for which said
premises are leased to him and pay all taxes or
other charges which shall during the term hereof
accrue, or become due and payable, because of his
use of the leased premises and will
permit no agent, employee, contractor, licensee,
or invitee of Lessee, to violate any laws, rules,
or regulations applicable to the use for which
said premises are leased.
6. All improvements of whatever kind necessary
for the use of said premises for the purposes
herein stated shall be made by Lessee at his
expense.
Subsequently, after a hearing, the trial court granted the
Landowners' respective motions for summary judgment. Four days
before signing the summary judgment orders, the trial court sent a
letter to the parties stating:
. . . [The Texas Agriculture
Code,] § 143.024[,] simply states that "a person
may not permit" an animal to run at large. To
adopt plaintiffs' theory of liability would be
tantamount to strict liability on
a (potentially absent) premises owner
under § 143.024 whereas the lessee/owner (with
day-to-day responsibility for the livestock)
would only be liable if found to have "knowingly"
permitted the cattle to roam free.
Black's Law Dictionary (6th Ed.)
defines "permit" as follows: [']Permit, v.,
to suffer, allow, consent, let; to give leave or
license; to acquiesce, by failure to prevent, or
to expressly assent or agree to the doing of an
act.['] Each of these concepts presupposes
knowledge on the part of the person permitting a
particular act. Even the failure to prevent is a
form of acquiescence which, likewise, would
require knowledge.
Accordingly, the Court finds as a matter
of law that there was no duty on the part of
defendants and, further, there is no evidence of
any breach of the duty. Therefore, defendants'
Motions for Summary Judgment will be granted. . .
. .
Issue
On appeal, in a single issue, the Minors advance several arguments
asserting the trial court erred in granting the Landowners' motions
for summary judgment. Specifically, the Minors argue that the trial
court erred (1) in finding the Landowners owed the
Minors no duty, (2) in requiring the Minors to show that the
Landowners had knowledge of the presence of the bull on the highway,
and (3) in ruling there was no evidence that the Landowners had
breached the duties they owed to the Minors under section 143.074 of
the Texas Agriculture Code. See
Tex. Agric. Code Ann. § 143.074 (Vernon 2004).
In response to the Minors' appellate arguments, the Landowners
assert they are not responsible to control a bull they did not own
and argue that they did not knowingly permit the bull to roam
unattended. Additionally, the Landowners contend that the local
stock law option provision, [fn5] adopted by Jefferson County voters
in 1933, [fn6] is void. In the alternative, if the local stock
option law is valid, the Landowners contend there is no evidence
that they violated any duty imposed by the statute.
Standard of Review
The appeal requires that we consider the trial court's
interpretation of section 143.074 of the Texas Agriculture
Code.[fn7] The trial court, in resolving the Landowners' motions for
summary judgment, interpreted section 143.074 of the Agriculture
Code in a manner requiring the Minors to prove the Landowners,
before the collision, had knowledge of the bull's escape from its
pasture.
With respect to the trial court's interpretation of a statute, we
review matters of statutory construction as questions of law under a
de novo standard of review. State v. Shumake,
199 S.W.3d 279, 284 (Tex. 2006). After construing the statute, we
then determine whether the trial court properly resolved the
Landowners' no-evidence motions for summary judgment. We review a
trial court's decision to grant a no-evidence motion for summary
judgment under the standards set forth in Rule 166a(i) of the
Texas Rules of Civil Procedure. See Tex. R. Civ. P. 166a(i).
To defeat a no-evidence summary judgment motion, the non-movant
must produce summary judgment evidence raising a genuine issue of
material fact regarding each element challenged by the movant.
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The
non-movant raises a genuine issue of material fact by producing
"more than a scintilla of evidence" establishing the challenged
element's existence. Id. More than a scintilla of evidence
exists when the evidence is such that reasonable and fair-minded
people can differ in their conclusions. Id. at 601. If "'the
evidence offered to prove a vital fact is so weak as to do no more
than create a mere surmise or suspicion of its existence, the
evidence is no more than a scintilla and, in legal effect,
is no evidence.'" Id. (quoting Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In determining whether the
non-movant has produced more than a scintilla of evidence, we review
the evidence in the light most favorable to the non-movant, and we
give credit to such evidence if reasonable jurors could and
disregard contrary evidence unless reasonable jurors could not.
See Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006).
The Parties' Arguments
The Minors do not claim that they are owed a duty of care under
Texas common law; instead, they cite two Texas statutes that serve
as the basis of the duties owed to persons who strike large domestic
animals while traveling on a road.[fn8] The first
statute, section 143.102 of the Agriculture Code, applies to "[a]
person who owns or has responsibility for the control of a horse,
mule, donkey, cow, bull, steer, hog, sheep, or goat[,]" and
prohibits such person from "knowingly permit[ting] the animal to
traverse or roam at large, unattended, on the right-of-way of a
highway." Tex. Agric. Code Ann. § 143.102 (Vernon 2004). Without
further explanation, the Minors' brief states that this provision
"is not applicable here."[fn9] The second statute that creates
duties on the part of individuals to restrain roaming livestock, and
the one upon which the Minors rely, is found at section 143.074 of
the Agriculture Code. See Tex. Agric. Code Ann. § 143.074.
According to the Minors, this statute requires persons to exercise
reasonable care over their property to prevent cattle from
roaming at large. Id. On appeal, and consistent with their
arguments in the trial court, the Landowners assert there
is no evidence from which a reasonable inference can be made
that they knowingly permitted a bull to roam at large on State
Highway 87.[fn10] The Minors disagree that section 143.074 requires
proof that the Landowners knowingly permitted the bull's escape. In
summary, the Minors contend that the Landowners can be held liable
under the facts of this case (1) if the Landowners knew or should
have known that their conduct could permit cattle to escape from
their land, and (2) if, in light of that knowledge, the Landowners
failed to exercise reasonable care under the circumstances.
The Minors argue that they met their burden of producing some
evidence to demonstrate that the Landowners owed a duty to them, and
they further contend that they marshaled evidence to show that the
Landowners were negligent. Specifically, the Minors point to the
deposition transcript of Youmans, who testified that a cattle guard
would make it less likely that a cow could successfully escape
through a pasture's open gate. They also point to their proof
that it was foreseeable that cattle could escape through an open
gate.
Analysis
In construing a statute, we are to "determine and give effect to
the Legislature's intent." Nat'l Liab. & Fire Ins. Co. v.
Allen, 15 S.W.3d 525, 527 (Tex. 2000). In determining the
Legislature's intent, our review is not confined to isolated words,
phrases, or clauses, "but rather we examine the entire act to glean
its meaning." Meritor Auto., Inc. v. Ruan Leasing Co.,
44 S.W.3d 86, 90 (Tex. 2001); see also
Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005) (instructing courts
to construe words and phrases in context). "We look first to the
statute's language to determine that intent, as we consider it `a
fair assumption that the Legislature tries to say what it means, and
therefore the words it chooses should be the surest guide to
legislative intent.'" Leland v. Brandal,
257 S.W.3d 204, 206 (Tex. 2008) (quoting Fitzgerald v. Advanced
Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)). "If
the statute's language is unambiguous, its plain meaning will
prevail." Id.
Because the Legislature did not define the term "permit" in
Chapter 143 of the Agriculture Code, we first address its likely
meaning.[fn11] When determining whether a given statute is
ambiguous, we consider, among other things, (1) the statute's
objectives; (2) the circumstances under which the statute was
enacted; (3) the statute's legislative history; (4) common law,
former law, and similar provisions; (5) the consequences of a
particular construction; (6) if pertinent, any administrative agency
constructions of the statute in issue; and (7) the statute's
title (caption), preamble, and emergency provision.
Tex. Gov't Code Ann. § 311.023(1)-(7) (Vernon 2005); see also In
re Canales, 52 S.W.3d 698, 702 (Tex. 2001). We also presume
that the Legislature intended a just and reasonable result.
Tex. Gov't Code Ann. § 311.021(3) (Vernon 2005); Helena
Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
Terms not specifically defined by statute are construed according
to the rules of grammar and common usage. See
Tex. Gov't Code Ann. § 311.011(a).
Dictionaries determine a word's common use. "Permit" means "1 : to consent
to expressly or formally: grant leave for or the privilege of : ALLOW,
TOLERATE (— smoking) (— an appeal) (— access to records)
2: to give (a person) leave : AUTHORIZE . . . 3 archaic: to give
over: COMMIT . . . 4 : to make possible building has been divided
. . . to — an unobstructed view Amer. Guide Series:
Conn . . ." Webster's Third New International
Dictionary 1683 (2002) (examples omitted following definitions
2 and 3).
In contrast to the arguments advanced by all of the parties, we
note that section 143.074 does not utilize the terms "negligence" or
"knowingly" to define the scope of the duty created
by section 143.074. See Tex. Agric. Code Ann. § 143.074.
However, in defining the statutory penalty for a violation
of section 143.074, the Legislature limits the persons subject to
being fined to those who "knowingly permit[]" cattle to
run at large. Tex. Agric.
Code Ann. § 143.082 (Vernon 2004). Section 143.082 provides:
(a) A person commits an offense if the person
knowingly permits a head of cattle or a domestic
turkey to run at large in a county or area
that has adopted this subchapter.
(b) An offense under this section is a Class C
misdemeanor.
Id.
By examining section 143.074's penalty provision, it appears
unlikely that the Legislature intended to extend the duty to include
any person who, in any abstract sense, could be said to have "made
possible" the escape of livestock from a pasture.
Construing section 143.074 broadly, in our opinion, would do
violence to the overall context of Chapter 143. For example,
construing "permit" to mean "made possible" could impose a statutory
duty on a manufacturer of barbed-wire when a strand of wire rusts
and breaks, thereby making possible the escape of cattle from a
pasture. In light of the Legislature's choice to restrict the reach
of the statute's penalty provision to those who "knowingly" permit
cattle to roam at large, we are skeptical that the Legislature
intended the duty it created in section 143.074 to extend to any
person "who makes possible" the escape of cattle from a pasture. We
conclude that the Legislature likely intended "permit" to mean "to
consent to expressly or formally," or to mean "to give leave." These
two definitions of the word "permit" found in Webster's Third
New International Dictionary appear to us to be the word's common
meaning.[fn12]
We are not to enlarge the plain meaning of a statute by enlarging
on a word's common meaning. See Nat'l Plan Adm'rs., Inc. v. Nat'l
Health Ins. Co., 235 S.W.3d 695, 701 (Tex. 2007) ("[W]e do not
expand the meaning of statutes by implication[.]"); see also
Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002) ("When construing a
statute, we ascertain the Legislature's intent from the plain
meaning of the actual language used."); Sorokolit v. Rhodes,
889 S.W.2d 239, 241 (Tex. 1994) ("In applying the plain and common
meaning of the language in a statute, courts may not by implication
enlarge the meaning of any word in the statute beyond its ordinary
meaning; such implication is inappropriate when legislative intent
may be gathered from a reasonable interpretation of the statute as
it is written.").
Next, we turn to whether the summary judgment evidence contains
any evidence, even a scintilla, that the Landowners "permitted" the
bull to roam at large. Having reviewed the record, we are unable to
find any evidence showing that the Landowners "permitted" the bull
to roam at large. Nothing in the record indicates the Landowners
visited the property or that they had entered the gate at any point
in time relevant to the date of the collision. There is no evidence
that any of the Landowners left the gate open. We find no evidence
that the Landowners authorized the bull's owner, the lessee that was
granted grazing rights, or any hunters that held hunting rights, the
right to leave the gate open. There is no evidence that the
Landowners authorized either Youmans or Gilfillian the right to run
cattle at large. There is also no evidence that the Landowners had
been notified of the bull's escape prior to the collision, and there
is no evidence that the Landowners were aware that any cattle had
previously escaped from the pastures they leased. Finally, there
is no evidence that the pasture's fence and its gate were not fit
for the ordinary uses for which they were intended. In summary,
there is no summary judgment evidence to raise any inference
that the Landowners "permitted" the bull's escape as prohibited by
the Legislature in section 143.074 of the Texas Agriculture Code.
After a careful review of the Landowners' motions for summary
judgments and a thorough examination of the Minors' responses to
these motions, we agree with the trial court that the Minors failed
to meet their burden of producing evidence to show that the
Landowners breached section 143.074.[fn13] We hold the trial court,
on this record, properly granted the Landowners' motions for summary
judgment. Consequently, we affirm the trial court's orders.
AFFIRMED.
[fn1] K.D., twenty-two months old at the time of the collision,
suffered catastrophic injuries. The summary judgment evidence
includes a Life Care Cost Analysis projecting that K.D. will incur
lifetime medical expenses in excess of fifteen million dollars.
[fn2] Three families, the Doornboses, the Labelles, and the Heberts,
together with certain entities owned or controlled by various
individuals from the three families, jointly own the land from which
the bull allegedly escaped. In a prior suit, the Minors settled
claims against the bull's alleged owners, Hollis Gilfillian
and H.C. Youmans. Youmans and Gilfillian were not named as parties
in this suit.
[fn3] While the Landowners do not dispute their ownership of the
land leased to Youmans, they currently dispute whether they had
sufficient control over the bull to restrict it to the pasture on
the date of the collision.
[fn4] The Doornbos lease was executed June 14, 1996, and then
renewed annually. The Labelle-Hebert-Green lease, the other
pertinent lease issued by the remaining Landowners, was
executed July 13, 2001. The two leases both grant grazing rights to
Youmans; require that Youmans pay for any required or necessary
improvements; impose an obligation on Youmans to maintain all
fences, gates, and other improvements on the leased premises; and
reserve to the owners all rights not granted to the lessee. With the
exception of one additional obligation in article four of the
Labelle-Hebert-Green lease, the two leases contain identical
provisions regarding the lessee's use of the property. The
additional provision in the Doornbos lease requires Youmans to keep
the gates on the property locked and requires that he notify the
lessors as soon as practicable of any failure to "maintain cattle
within the confines of the premises. . . ." If violated, the
notification provision further provides the lessors with the right
to declare the lease in default.
[fn5] See
Tex. Agric. Code Ann. §§ 143.071-.082 (Vernon 2004).
[fn6] See "Order Declaring Results of
Stock Law Election — Horses, Mules, Jacks,
Jennets & Cattle — Jefferson County as A Whole," at page
894 of the clerk's record on appeal.
[fn7] We assume, without deciding, that section 143.074 of the Texas
Agriculture Code is not void as it relates to Jefferson County. On
appeal, the Landowners contend that Jefferson County could not
legally adopt section 143.074. They further assert that imposing
liability on them as owners of land in Jefferson County by virtue
of section 143.074 would deprive them of their property without due
process of law. That argument is premised on their claim
that section 143.072 of the Agriculture Code expressly prohibited
Jefferson County from conducting a countywide election to adopt the
local option stock law. Compare
Tex. Agric. Code Ann.§ 143.074 (Vernon 2004) with
Tex. Agric. Code Ann. § 143.072 (Vernon 2004). Although an
interesting argument, and one that the Landowners raised in the
trial court, we must defer deciding whether the order adopting the
local option stock law in Jefferson County is void. "Judicial
restraint cautions that when a case may be decided on a
non-constitutional ground, we should rest our decision on
that ground and not wade into ancillary constitutional questions."
VanDevender v. Woods, 222 S.W.3d 430, 432 (Tex. 2007). Like the
trial court, which also chose not to wade into the Landowners'
challenge to the validity of the statute, we likewise choose to
decide the dispute on another issue.
[fn8] In their brief, the Minors acknowledge that "[t]here
is no common law duty in Texas to restrain livestock." See
Gibbs v. Jackson, 990 S.W.2d 745, 746 (Tex. 1999). As the Minors
do not contend that they are owed a duty at common law, we do not
further address whether any common law duty exists. See
Tex. R. App. P. 47.1 (opinion must address every issue raised as
necessary to final disposition of the appeal).
[fn9] In response to the Labelle defendants' motion for summary
judgment, the Minors' argued that the Landowners
violated section 143.102 of the Agriculture Code. Subsequently, in
their response to the Hebert-Green's and the Doornboses' motions for
summary judgment, the Minors stated that they were not asserting a
negligence claim against these defendants under section 143.102 of
the Agriculture Code. Based upon their brief, it now appears
that the Minors do not claim that section 143.102 applies to any of
the defendants. As the Minors do not contend the trial court erred
in failing to consider whether section 143.102 creates duties owed
to them, any question concerning whether it applies to the
Landowners is also not before us. See Tex. R. App. P. 38.1(ei);
Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998);
Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).
[fn10] The Landowners also argue that section 143.102 of the
Agriculture Code is the controlling provision for highways.
See Tex. Agric. Code Ann. § 143.107 (Vernon 2004). Therefore,
they conclude that the Legislature never intended the local option
stock provision, found in section 143.074, and which is not
restricted to any specific roadway, to also apply to a collision
that occurred on a highway. See
Tex. Agric. Code Ann. §§ 143.074, 143.102 (Vernon 2004). It is
unnecessary that we reach this alternative argument in resolving the
appeal. See Tex. R. App. P. 47.1.
[fn11] In support of the trial court's judgment, the Landowners also
argue that the Minors produced no evidence to explain how the bull
escaped the pasture. We do not discuss this argument. Instead, we
focus on whether the Minors, in response to the Landowners' summary
judgment motions, produced any evidence to show that the Landowners
permitted cattle to roam at large in violation of a statutory duty
that we have assumed applies to Landowners pursuant
to section 143.074 of the Agriculture Code.
[fn12] We also doubt that the Legislature intended to adopt an
archaic meaning of "permit," so we do not further discuss the sense
of "permit" when used to mean "to give over."
[fn13] We reiterate that we have assumed for purposes of this appeal
that the local option stock law can validly apply in Jefferson
County: we expressly reserve deciding whether Jefferson County could
validly adopt the local option stock law.
BRITT v. JONES, 14-08-00331-CV (Tex.App.-Houston [14th Dist.] 9-22-2009)
ANTHONY BRITT, Appellant v. JAMES B. JONES AND JAMES B. JONES, III
FAMILY LIMITED PARTNERSHIP, Appellees.
No. 14-08-00331-CV
Court of Appeals of Texas, Fourteenth District, Houston.
Opinion filed September 22, 2009.
On Appeal from the 163rd District Court Orange County, Texas,
Trial Court Cause No. B-050,545-AC.
Panel consists of Chief Justice HEDGES and Justices YATES and
FROST.
MEMORANDUM OPINION
KEM THOMPSON FROST, Justice.
In this case a law enforcement officer brought negligence claims
against landowners seeking damages for injuries he sustained when he
was struck by a vehicle on a highway adjacent to the landowners'
property. The officer, who, at the time of the accident, was
responding to a call for assistance involving loose livestock along
the highway, alleged that the landowners were negligent in allowing
cattle to roam and in failing to properly maintain
Page 2
and secure the fence and gate. The trial court granted summary
judgment in favor of the landowners. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Anthony Britt, a law enforcement officer, responded to a
dispatch call for assistance involving cattle on the loose near a
highway that abutted property belonging to appellees James B. Jones
and James B. Jones, III Family Limited Partnership
(collectively referred to hereinafter as "Jones"). According to the
pleadings, Britt was standing in the middle of South Highway 62 in
Orange County when he was struck by a vehicle traveling on the
highway. He sustained a number of injuries. Britt claimed that when
the vehicle struck him, he was herding cattle back onto Jones's
fenced property.
Britt brought suit against the driver of the vehicle and Jones,
seeking damages for the injuries he sustained in the accident.[fn1]
According to his petition, Britt alleged that Jones negligently
allowed the cattle to roam on the highway, failed to properly secure
the gate and fence, and failed to maintain the fence in proper
condition.
James B. Jones and the James B. Jones, III Family Limited
Partnership each filed traditional and no-evidence motions for
summary judgment; the trial court did not rule on these
motions. Collectively, Jones filed an amended motion for summary
judgment on both traditional and no-evidence grounds, asserting in
relevant part that there was no evidence that Jones owned the cattle
or that Jones's conduct breached a duty or proximately caused
Britt's injuries. In support of the summary judgment motion, Jones
included deposition testimony from a number of individuals,
including James Lee Duhon, who had helped corral the cattle and
witnessed the accident. In response to Jones's amended motion, Britt
pointed to
Page 3
evidence of Duhon's written statement taken by an accident
investigator and Duhon's deposition testimony to support Britt's
claim that Jones owned the cattle.
The trial court granted Jones's amended motion for summary
judgment in its entirety on a no-evidence basis, making the
following observations:
• Local stock laws of Orange County require
that a common law negligence standard governs
Britt's claims.
• Duhon lacked sufficient personal knowledge
under Texas Rule of Evidence 602 to testify to
ownership of the cattle.
• Duhon's written statement taken by
investigators, in which Duhon asserted that the
cattle belonged to Jones, is a prior inconsistent
statement and cannot be offered as substantive
testimony of the cows' ownership.
• Britt had the burden of pleading and
establishing the doctrine of res ipsa
loquitur and failed to introduce evidence
sufficient to establish applicability of
that doctrine to preclude summary judgment.
The trial court rendered a take-nothing judgment in favor of Jones
and dismissed Britt's claims against Jones with prejudice.
In a single issue, Britt asserts the trial court erred in granting
summary judgment in favor of Jones. In support, Britt contends
that Duhon had sufficient knowledge under Texas Rule of Evidence
602 to identify Jones as the cattle's owner. Furthermore, Britt
contends that Duhon's written statement, in which Duhon claimed
that Jones owned the cattle, was not a prior inconsistent
statement. Finally, Britt contends that the doctrine of res ipsa
loquitur is applicable to the claims presented.
II. ANALYSIS
In reviewing a no-evidence motion for summary judgment, we
ascertain whether the nonmovant pointed out summary-judgment
evidence raising a genuine issue of fact as to the essential
elements attacked in the no-evidence motion. Johnson v.
Brewer & Pritchard, P.C.,
Page 4
73 S.W.3d 193, 206-08 (Tex. 2002). In our de novo review of a trial
court's summary judgment, we consider all the evidence in the light
most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors
could differ in their conclusions in light of all of the
summary-judgment evidence. Goodyear Tire & Rubber
Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
Under the Texas Agriculture Code, a livestock owner may be liable
for negligence if the owner's livestock strays onto highways.
See TEX. AGRIC. CODE ANN. §§ 143.101-.102 (Vernon 2004);
Gibbs v. Jackson, 990 S.W.2d 745, 749 (Tex. 1999) (declining to
adopt common law duty of negligence for livestock roaming on
farm-to-market roads); Beck v. Sheppard,
566 S.W.2d 569, 572-73 (Tex. 1978) (applying common law duty for
owner to act with due care to keep livestock from escaping onto a
highway). Texas Agriculture Code section 143.102, entitled
"Running at Large on Highway Prohibited," provides that "[a] person
who owns or has responsibility for the control of a . . . cow . . .
may not knowingly permit the animal to traverse or roam at large,
unattended, on the right-of-way of a highway." TEX. AGRIC. CODE A
NN. § 143.102 (Vernon 2004). As defined in the Texas Agriculture
Code, a "highway" is a "U.S. highway or a state highway in this
state, but does not include a numbered farm-to-market road."
Id. § 143.101 (Vernon 2004); see Gibbs, 990 S.W.2d at 749.
The Texas Agriculture Code also prohibits livestock from
roaming at large if a county has elected to en act local option
stock law s. See
TEX. AGRIC. CODE ANN. § 143.074 (Vernon 2004).[fn2] Under a
statutory prohibition of the Texas Agriculture Code or under local
option stock laws, to hold an owner liable for livestock
roaming at large on a highway, some fault must be attributed to the
owner. See Goode v. Hauer, 109 S.W.3d 788, 792
Page 5
(Tex. App.-Corpus Christi 2003, pet. denied). However, the presence of
livestock on a roadway does not create a presumption that an owner
was negligent. See Beck, 566 S.W.2d at 572.
In the amended motion for summary judgment, Jones asserted
that there is no evidence that Jones allowed any cattle to roam
unattended on the highway or that the cattle at issue belonged to
Jones. Jones asserted there is no evidence that Jones's conduct
proximately caused Britt's injuries or that Jones's conduct breached
a duty. Jones indicated that there is no evidence of the manner the
cows' escape or the location from whence they came.
In response to Jones's motion, Britt pointed to Duhon's written
statement to investigators and excerpts of Duhon's deposition
testimony to support his claims that Jones owned the cattle. In the
deposition, Duhon admitted being familiar with the
Jones family. Duhon's uncle had lived on Jones's property, and Duhon
had visited Jones's property on several occasions. Duhon
acknowledged giving a statement to accident investigators. Duhon's
statement was taken by an investigating officer and provided in
part, "I met with the officer [Britt] and told him the cow belonged
to Dr. [James B.] Jones and he was on his way out." However, in his
deposition, Duhon did not recall making this statement to
investigators and maintained that he did not know who owned the cows
or how to identify Jones's cattle.
Presuming without deciding that Jones owned the cattle in
question, [fn3] the evidence upon which Britt relies does not support
his negligence claims against Jones. See, e.g., McNeal v.
Thom as, No. 13-03-347-CV,
2005 W L 375482, at *5 (Tex. A pp.-Corpus C hristi Feb. 17, 2005, no pet.)
(providing that even if summary-judgment evidence established that a
person owned a cow, the evidence did not establish that the person
knowingly permitted
Page 6
the cow to roam under section 143.102 of the Texas Agriculture
Code). To the contrary, Duhon's deposition testimony, to which Britt
refers, suggests that the cattle were no longer in the vicinity when
Britt was struck. Duhon explained that once he arrived on the scene,
he saw the cattle only for about five minutes and that the cattle
"weren't around for very long." Duhon described how he helped Britt
corner the cattle into a driveway area with a gate that leads onto
Jones's fenced property. Duhon claimed that the gate was closed,
chained, and locked. According to Duhon, even if he could have
corralled the cattle through the gate, the cattle would not have
been able to traverse the twenty-foot cattle guard, which was
located in front of the gate. Duhon did not notice any portion of
Jones's fence that was down to permit the cattle's escape. Duhon
explained that after he cornered the cows near the gated area, the
cows remained there for only a few minutes before they
ran north along the fence line between a parked vehicle and the
fence and disappeared into the darkness.
Duhon estimated that the cattle had not been in the vicinity for
roughly twenty to thirty minutes before Britt was struck by the
vehicle. He indicated that he and Britt chatted for a few minutes
after dealing with the cattle, and then Britt directed traffic.
Duhon saw the vehicle hit Britt. Duhon indicated that Britt was
standing in the roadway "flagging" traffic at the time of the
accident. He described how the vehicle maneuvered around other
vehicles parked along the highway. The vehicle did not swerve before
hitting Britt.
In viewing the summary judgment proof under the applicable
standard, Britt's evidence does not raise a genuine issue of
material fact as to whether Jones's conduct proximately caused
Britt's injuries. See Beck, 566 S.W.2d at 573. Britt has
presented no evidence that any cow was on the highway at the time of
the accident or that any cow caused the driver to operate her
vehicle in such a manner as to strike Britt. Britt has
presented no evidence that Jones's fences were down or that Jones's
gate was open. See id. Likewise, Britt provided no evidence
that cattle escaped Jones's property. See Gibbs,
990 S.W.2d at 746. There is no evidence suggesting that Jones did
not exercise due care or that Jones
Page 7
should have been alerted that cattle had escaped Jones's property
and were roaming. See Beck, 566 S.W.2d at 573.
Britt points to evidence that he claims suggests Jones's
negligence, such as the fact that a cow made its way to the nearby
gate on Jones's property. However, factual inferences and
presumptions cannot be derived from uncertain, unknown, or unproven
facts. See id. at 571 (requiring a proven or known fact as a
necessary predicate to a presumption). The presence of livestock on
a highway and the proximity of the accident to Jones's property do
not create a presumption that Jones was negligent.[fn4] See
id. at 571-72 (involving a factual issue as to owner's negligence
that rested on an unsupported presumption); see also McNeal,
2005 WL 375482, at *5 (determining that summary-judgment proof as to
owner's negligence in permitting cattle to roam was speculative).
Britt presented no evidence that Jones was negligent or
that Jones's conduct proximately caused the injuries.[fn5] See
Beck, 566 S.W.2d at 573 (determining that no more than a
scintilla of evidence demonstrated livestock owner's or property
owner's common law negligence); see also McNeal,
2005 WL 375482, at *5 (affirming summary judgment when
summary-judgment evidence did not raise a fact issue as to
common-law and statutory claims that owner failed to maintain fence
or knowingly permitted cattle to roam at large on a highway).
Therefore, the trial court did not err by granting Jones's
no-evidence motion for
Page 8
summary judgment because no genuine issue of material fact exists
concerning whether Jones breached a statutory duty or proximately
caused Britt's injuries. Accordingly, we overrule Britt's sole issue
on appeal and affirm the trial court's judgment.
[fn1] Britt's claims against the driver were severed from the claims
against Jones. In his live petition, Britt also named another person
whom he alleged was negligent in allowing the cattle to roam and in
failing to maintain and secure fencing and a gate. However, Britt's
claims against this defendant were dismissed without prejudice.
[fn2] The trial court's order indicates that Orange County has
passed such local stock laws.
[fn3] In making this presumption, we also presume without deciding
that Duhon had sufficient personal knowledge to identify Jones as
the owner and that Duhon's written statement supported the ownership
as substantive evidence.
[fn4] The trial court's order provided that Britt failed to
introduce evidence sufficient to establish applicability of res
ipsa loquitur to preclude summary judgment. Britt argues on
appeal that this doctrine is applicable to the facts of this case.
Even if we accept as true Britt's argument that the doctrine
applies, the fact that livestock were present on the roadway does
not create a presumption that an owner was negligent. See
Beck, 566 S.W.2d at 572. This is especially true in light of
Duhon's testimony that the cows were not in the vicinity at the time
the vehicle struck Britt.
[fn5] Even if we were to presume Britt established that Jones owed a
duty under local county stock laws to prevent livestock from
roaming, to the extent Britt argues that Jones proximately caused
Britt's injuries, Britt has produced no evidence that Jones breached
any such duty. See Beck, 566 S.W.2d at 573. Britt
produced no evidence that Jones's gate or fence were in disrepair or
that, by reason of Jones's negligence, any cattle could escape
Jones's property. See id. (concluding no evidence was presented
to support claim that owner of livestock did not exercise due
care).
