Every law student loves a good negligence case. Poor Mrs. Palsgraf, the Learned Hand Test, the McDonald’s coffee case, Martin v. Herzog and negligence per se. The list goes on. Ok, it doesn’t really go on all that much, but it’s an interesting list.
Today’s case isn’t about land use, per se (see what we did there?), but it’s a great set of facts involving a cow, an identification of a cow, a personal injury, a garden, a sighting of said cow “in the garden”, a $350,000 plaintiff’s verdict, and a reversal thereof. That’s a jackpot.
So, let’s have some fun.
Basically, one Wednesday night in 2008, plaintiff was rushed by, knocked over by, and injured by defendants’ cow. Almost two weeks later, the cow was hit by a car near plaintiff’s house. Plaintiff identified the cow as the one that rushed him, and he notified defendants of the fact of the loose cow, the car accident, and plaintiff’s injury at the horns/head/hoof of the cow.
Almost three years later, within the limitations period, plaintiff filed a negligence suit against defendants on account of the cow attack. After a trial, the jury awarded plaintiff $350,000 in damages, and defendants appealed.
Because this is a case about an animal, and the animal owner’s liability for negligence, the Court begins with the legal standard applicable to “animal negligence”:
The liability of the owner of animals for permitting them to escape upon public highways, in case they do damage to travelers or others lawfully thereon, rest upon the question whether the keeper is guilty of negligence in permitting them to escape. In such case the same rule in regard to what is and what is not negligence obtains as ordinarily in other situations. It is the legal duty of a person having charge of animals to exercise ordinary care and the foresight of a prudent person in keeping them in restraint.
The Court notes that plaintiff’s theory of liability is not grounded in the fact that the cows escaped, but rather is grounded in the fact that defendants failed “to sufficiently look for the cows once they learned or should have learned that the cows had escaped.”
The Court could not sustain plaintiff’s verdict on appeal because there was no evidence in the record that defendants knew of the loose cows before the cow attack occurred. The Court states, “[W]hether defendants’ alleged negligent conduct (their failure to properly search for the cows) occurred before or after plaintiff’s injury is a matter of pure speculation.” Consequently, plaintiff’s judgment is reversed and entered for defendants.
Mike Thelen practices in Womble, Carlyle’s Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.
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Categories: Real Property Issues