By Ronald J. Zaremba, CPCU, AIC, ARM

Among the first groups to settle the West were the cattlemen. When they first came, their primary problems were predators and Indians. Land was not fenced. Another problem developed within a very short time; homesteaders. The antipathy between the farmer and the cattle rancher is well known and documented. As the areas became settled and were admitted to the Union as states, the State Legislatures formulated laws to delineate the responsibilities and rights of each group; the cattle rancher and the farmer. In the late 1800's and in the early 1900's animals were very important economically.

Thus many laws were passed concerning the care, maintenance and responsibilities of the animal owner. (see chapter 16 - Revised Code of Washington) One of the solutions created by the legislature is the "stock restricted area." RCWI6.24. 010 provides that the County Commissioners may designate stock restricted areas. All territory not so designated shall be range area which livestock may run at large. The County Commissioners must give public notice of a hearings, hold a hearing and then decide on whether or not to make a stock restricted area after the hearing. In a stock restricted area, the stock are restricted, i.e. they cannot run at large lawfully. RCW16.24.065 provides as follows: "No owner or person in charge of livestock shall willfully or negligently allow such livestock on the right of way of a public highway within such area without sufficient attendants to control the livestock and to protect vehicles thereon from danger by reason thereof."

If unattended livestock are on a highway and a collision results, the existence of a valid stock restricted area is of extreme importance. In a stock restricted area once a vehicle owner is able to establish that the animal was on the public right of way, unattended, the burden shifts to the animal owner to prove that he exercised ordinary care and reasonable care in restraining the animal and preventing its escape. The presence of the animal on the highway is neither negligence per se nor strict liability. The question remains one of negligence which is ultimately decided by the jury. Needless to say, the automobile operator's negligence is also a factor.

Surprisingly, although the majority of the animal statutes were passed seventy five years ago, there has been little Court activity regarding collision with animals on public right of ways until the middle 1960s. Since then there have been several decisions in both the Appellate and the Supreme Court levels. The rules were set forth in one of the earlier decisions @1965) Scanlon vs Smith 66WA2nd6Ol. The Supreme Court in this decision, ruled that the presence of livestock on the highway within a stock restricted area is not negligence per se. There is no liability without fault. The presence of animals on a public highway within a stock restricted area places the burden upon the defendant to go forward with the evidence explaining the presence of livestock on the highway and establishing that reasonable care had been exercised to prevent such an occurrence. The question of negligence is still one for a jury.

In Consolidated Dairy Products vs McDonald (1967) 71WA2ndl53, the Supreme Court addressed themselves to the "stud horse statute" as it pertains in a stock restricted area. This case arose in Snohomish County. McDonald had tethered a stallion to an apple tree in his front yard adjacent to Highway 9. south of Snohomish.

Page 2 Vehicle vs Livestock Claims

During the early morning hours the stallion had broken free and unbeknown to McDonald had wandered onto the highway. Consolidated Dairy Products truck and trailer came around a gradual curve and saw the horse in the middle of the roadway in its headlights. The driver applied the brakes and went off the roadway to avoid hitting the horse. There were no injuries however; damage to the truck and trailer totaled approximately $91,000.00. The case was tried to a jury in Snohomish County with a verdict in favor of the defendant. The case was appealed to the Supreme Court. The High Court ruled that where a horse has strayed onto a highway causing a vehicle to run into a ditch, the statute declaring it unlawful for persons to permit livestock to stray upon public highways (RCW 16.24.070) and the statutes providing criminal penalty for permitting stallions to run at large (RCW lb,16,010) and making the owner liable for any damages done by a stud horse running at large (RCW 16.16.040) do not render the owner of the horse liable without fault. The presence of livestock on the highway raises a permissible inference of negligence which will take the plaintiffs case to the jury and places upon the defendant the burden of going forth with any evidence which shows they exercised reasonable and ordinary care to prevent livestock from getting onto the highway.

In a later Supreme Court case,, Boyce vs. Adams 87WA2nd56 (1976) the High Court refused to apply the doctrine of strict liability to the owners of controllers of livestock present on the highway. In Vacca vs. Steer Inc., 73WA2nd892 (1968) the Court ruled that there is no absolute liability on the owner of cattle to respond in damages for their trespass. Where the owner has surrendered custody and control of the animals to a gratuitous bailee, the owner has no duty to prevent damage to property of third persons as a result of animals straying unless he knows or has reasonable grounds to believe the animals will stray or that the bailee is not properly caring for them. Other cases of interest are: Hampton vs. Carlson 6WA Appellate390 (1972); Berendt vs. Young, 7WA Appellate299 (1972); Misterek vs. Washington Mineral Products, Inc. 85WA2ndl66 (1975).

Herded or ridden animals are "traffic" and accordingly should be on the right side of the highway (Rcw46.04.590). The owner of a livestock is under statutory duty to provide a sufficient number of attendants to protect vehicles in a stock restricted area (RCW46.24.070). However, the owner or handler's duty is that of reasonable and ordinary care. This duty is discharged by the livestock owner by providing sufficient attendants and other warning devices or precautionary measures that are reasonable necessary. The owner does not guarantee that one or more head of livestock will not unexpectedly break away. However, extra precautions should be taken if the owner is aware of difficult, vicious or "breachy" animals.

Areas not in stock restricted areas are range areas and the livestock may run at large. The owner is under no statutory duty to confine them. In such areas livestock on the highway are not trespassers. Horses are an exception, they are not to run at large (see RCW16.13.010). It is sometimes said that the operator of the vehicle has the same duty of care that he owes to pedestrians. This would not, however, prevent the owner being found negligent in turning livestock loose in an area that could not help but present traffic hazards, such as allowing the livestock to graze on the highway right of way with fences on both sides. At this point, there has been no higher Court cases in Washington involving the collision of vehicles with animals in open range areas.

Page 3 Vehicle vs. Livestock Claims

Verifying the existence of a valid stock restricted area is the first step in determining liability, If there is no stock restricted areas the livestock have a right to be on the highway and it is the vehicle operator's duty to be on the lookout for them. RCW16.240.60 requires the County Commissioners to direct signs adjacent to public roads as they enter a range area (non-restricted area), These signs must state "Range Area - Watch Out For Livestock". In restricted areas, however, the livestock have no right to be on the highway unattended. Their presence on the highway infers negligence on the part of the owner or keeper of the livestock and it is the owner or keeper of the livestock's responsibility to prove that they exercised ordinary care in restraining the livestock. Therefore, in investigating these types of claims,, it is paramount that you determine the exact location of the accident and whether or not the accident occurred within a stock restricted area. Once you have determined where the accident occurred, a general legal description of the accident area can be helpful. Counties have maps setting forth the stock restricted areas which can be used on most claims. However, the maps are not always accurate and the accidents for some mysterious reason, seem to occur on roadways that border stock restricted areas. Therefore it may be necessary to check with the County Auditor's Office and research the County ordinance to determine the proper boundaries of the stock restricted area. If there is significant exposure as the result of this accident, I suggest that you get a copy of all the materials from the County Auditor's Office concerning the implementation of the restricted area or herd district in question. These documents should be reviewed by your attorney to determine if the County Commissioners strictly complied with the letter of the statute when the herd district was formed. If they failed to comply with the statute then the stock restricted district may be found invalid.

An inspection of the accident scene is also important. Beside the usual physical evidence at the scene: skid marks, debris, etc; it is necessary to determine from personal inspection the condition of the fences and the condition of the pasture or grazing land. It is also important in discussing the possible negligence of the driver, to determine what visual obstructions existed. Measurements and photographs can be invaluable in either pursuing your subrogation or defending your insured. If the accident occurred on the border of a stock restricted areas you will have o determine from the County ordinance how the border was formed. Some borders are mid-section lines, others can be the center line of the road. You may find it necessary to contact the State Department of Highways to determine where the roadway lies in relationship to the section lines and their right of way. Since the herd districts were formed some years ago, in most jurisdictions it is not unusual to find the road has been re-routed. Location of section markers can be very helpful.

Whether you are in a stock restricted area or range area,, you should check with the Washington State Patrol and the County Sheriff's Office to determine the history of prior complaints of animals on the highway or roadway in the accident scene area. It could will be that the owner of the livestock has some "breachy" animals which could possibly make him liable for the damages (RCW16.60-075). From whatever agency investigated the accident, you should determine how the ownership of the animal was established, If the animals was branded you should obtain the brand. If you do not know whose brand it is, you can check in the "Brand Book" through the director of the State Department of Agriculture. All brands are supposed to be registered. Since the animal will undoubtedly be disposed of before you get started on your investigation,, it is important to obtain a description of the animal from all parties who saw it at the accident scene.

The following is to provide an outline in obtaining the reports from the passenger and driver of the vehicle as well as the owner of the livestock. The outline is general in scope; it is not meant to encompass all factual situations.

Statement of Driver/Passengers

Name, age address, occupation,, driver's license, restrictions, vehicle identification, owner, permissive use, purpose of trip, destination when due, passenger's position in vehicle date, time and place of accident, direction traveled vehicle speed, condition of roadway, speed limit, visibility - both inside and outside the vehicle, lights high or low beam, efficiency of windshield wipers if being used, awareness of signs warning of range area, when and where were cattle or animals first seen, other animals seen on right of way, when and where prior to the collision, distance from animals when first seen, where were they on highway, numbers of animals, direction animals were facing or traveling, what action was taken to avoid collision where on the highway did the collision occur, part of the vehicle striking the animal, the path of the animal and the vehicle after the impact and where both came to rest, description of animals hit injuries and treatment - both past and present, damage to the vehicle and animal, any salvage on the animal, presence of drugs/alcohol, how did animals get onto highway, Police investigation witnesses

Animal Owner or Caretaker

name age, address, occupation number of animals, kind, purpose of keeping them, where were animals confined at the time of the accident,, proximity to the accident scene, number of acres confined upon, ownership of land if leased, the terms of the lease and who is responsible for fences, the availability of water and feed in confinement area, how long have they been confined in the area, the condition of fences, type description, height, distance between posts, how often are fences maintained, when was fence last checked, number of gates, where located, are they locked, when were gates last checked or used, who has had access through the property,, when -where - why when did you become aware of animals on roadway, how did animal escape or get onto highway, what evidence - gate opened, fence down - hoof marks,, etc, repairs necessary to gate or fence after animals escaped, prior experience with the animals escaping did you inspect the animals involved in collision, description of animal - type, colors sex, weight, value -how determined, how was animal disposed of, what identifying marks were on the animals how did you determine the animal was yours, knowledge of accident, witnesses

The investigation should be conducted with an open mind and with an eye for detail. Little points can make big differences in litigation, For example, one case that I handled involved substantial exposure to the owner of the cow. The owner of the cow was adamant that the animal was his. However, in questioning him, I learned that he identified the Black Angus cow at 1:30 a.m. while the cow was laying in the ditch by running his hand under the cow and feeling the brand. The owner's fence had not been breached. With other Black Angus in the area, a reasonable doubt as to the ownership of the cow "suddenly" materialized. Claims arising from collision with animals must be investigated carefully in order to determine the liability of each party.

Other statutes which may be of interest are:

16.01.010 Liability for Damages - Restraint - 1893 Act. Any person suffering damage done by any horses, mares, mules, asses, cattle, goats, sheep, swine or any such animals,, which shall trespass upon any cultivated land enclosed by lawful fence or situated within any district created pursuant to RCW 16.24.010 through 16.24.0659 may retain and keep in custody such offending animals until the owner of such animals shall pay such damage and costs, or until good and sufficient security may be given for the same.

16.01.030 Actions for Damages. If the owner or person have such animals in charge fails or refuses to pay the damages done by such animals and the costs, or give satisfactory security for the same within twenty four hours from the time the notice was served, if served personally, or in case of horses, mares, mules and asses, within twenty four hours from the time such notice was posted, if served by posting the same, and in case of cattle, goats, sheep and swine within ten days from the time of such posting, the person damaged may commence a suit, before any court having jurisdiction thereof, against the owner of such animals or against the persons having the same in charge, or possession, when the trespass was committed if known and if unknown the defendant shall be designated as John Doe and the proceedings shall be the same in all respects as in other civil actions, except as modified in

RCW16.04.010 through 16.04.070. If such suit is commenced in superior court the summons shall require the defendant to appear within five days.

16.16.040 Liability for Damages. If any stud horse, stud mule, jackass, or stag, while running at large out of the enclosed grounds of the owner or keepers shall damage any other animal by biting or kicking him, or shall do any damage to personal property of any kind whatever, the owner of such animal shall be liable for all damages done by

16.13.010 Horse, mules asses not permitted at large. It shall be unlawful for the owner of any horse, mule or ass to permit such animal to run at large and not under the care of a herder; provided that such animals may run at large upon lands belonging to the state or to the United States, when the owner thereof has in writing been granted grazing privileges, and has filed a copy of such permit or certificate with the director of agriculture (1951 c 31 1)

16.60.010 Lawful fence defined. The following shall be considered lawful fences in this state: Post and rail or plank fences, five feet high, made of sound posts five inches in diameter set substantially in the ground, not more than ten feet apart, with four planks not less than one inch thick and six inches wide, securely fastened by nails or otherwise said plans not more than nine inches apart. Posts and rail fences, with posts not more than ten feet apart and rails not less than four inches wide (five of them) made in all other respects the same as the first described in this section. Worm fences made in the usual way, of sound, substantial rails or poles, five feet high, including riders with stakes set firmly in the ground and spaces no greater than in post and plank or rail fences, except the two lower spaces which shall not be more than four inches,, and the top spaces between riders,, not to be more than sixteen inches.

Page 8 Vehicle vs. Livestock Claims

Ditch and pole, or board or rail fence, shall be made of a ditch not less than four feet wide on top and three feet deep, embankment thrown up on the inside of the ditch, with substantial posts set in the embankment not more than ten feet apart,, and a plank pole, or rail securely fastened to said posts, at least seven feet high from the bottom of the ditch.

16.60.011 Other lawful fences. All other fences as strong and as well calculated to protect enclosures as wither of those described in RCW16.60.010 shall be lawful fence (Code 1881)

l6.60.015 Liability for damages - Restraint - Code 1881. Any person making and maintaining in good repair around his or her enclosures any fence such as is described in RCWl6.60.010 and l6.6O.Oll, may recover in a suit for trespass before the nearest court having competent jurisdiction, from the owner or owners of any animal or animals which shall break through such fence, in full for all damages sustained on account of such trespass together with the costs of suits and the animal or animals so trespassing may be taken and held as security for the payment of such damages and costs. Provided that such person shall have such fences examined and the damages assessed by three reliable disinterested parties and practical farmers,, within five days next after the trespass has been committed. And, provided further, that if, before trial, the owner of such trespassing animal or animals, shall have tendered the person injured any costs which may have accrued, and also the amount in lieu of damages which shall equal or exceed the amount of damages afterwards awarded by the court or jury, and the person injured shall refuse the same and cause the trial to proceed.

16.60.030 Partition Fence - Erection - Notice, When two or more persons own land adjoining which is enclosed by one fence, and it shall become necessary for the protection of the interest of one party, said partition fence shall be made between them, the other or others, when notified thereof, shall erect or cause to be erected, one-half of said partition fence, said fence to be erected on or as near as practicable the line of said land.

16.6o.o4o Partition Fence - Failure to Build - Recovery of half of cost. If, after notice has been given by either party and a reasonable time has elapsed, the other party neglect or refuse to erect or cause to be erected, the one-half of such fence, the party giving notice may proceed to erect or cause to be erected the entire partition fences and collect by law one-half of the cost thereof from the other party.

16.60.075 Damages by Breachy Animals. The owner of any animal that is unruly, and in the habit of breaking through or throwing down fences, if after being notified that such animal is unruly and in the habit of breaking through or throwing down fences as aforesaid, he shall allow such animal to run at large, shall be liable for all damages caused by such animal, and any and all other animals, that may be in company with such animal.