Booth v. State

• Decision Date: 30 January 2004
• Docket Number: No. 2 CA-CV 2003-0097.,2 CA-CV 2003-0097.
• Citation: 83 P.3d 61,207 Ariz. 61
• Parties: Jerry BOOTH, a married man, and Celina Booth and Melina Booth, minor children, by and through their parent Jerry Booth, Plaintiffs/Appellees, v. STATE of Arizona, a political entity, Defendants/Appellants.
• Court: Arizona Court of Appeals

83 P.3d 61

207 Ariz. 61

Jerry BOOTH, a married man, and Celina Booth and Melina Booth, minor children, by and through their parent Jerry Booth, Plaintiffs/Appellees, v. STATE of Arizona, a political entity, Defendants/Appellants.

No. -0097.

Court of Appeals of Arizona. Division Two, Department B.

January 30, 2004.

As Amended on Reconsideration in Part March 31, 2004.

The Rabb Penny Law Firm by Lloyd L. Rabb, III, Tucson, James G. Heckbert, Steamboat Springs, CO, for Plaintiffs/Appellees.

Terry Goddard, Arizona Attorney General by Daniel P. Schaack, Phoenix, for Defendants/Appellants.

Jones, Skelton & Hochuli, P.L.C. by Randall H. Warner, Phoenix, Attorneys for Amicus Curiae, County Supervisors Association.

OPINION

ECKERSTROM, J.

¶ 1 In this appeal, we are asked to decide whether the trial court erred in allowing a jury to determine that the state negligently had failed to prevent elk from entering portions of Interstate 40 (I-40) just east of Flagstaff. Based on the particular facts presented in this case, we conclude that the issue was properly presented to the jury and affirm the judgment entered below.

¶ 2 In December 1998, Jerry Booth was severely injured when the car he was driving collided with an elk lying in the roadway on I-40 near milepost 211. He sued the state on his own behalf and that of his daughters, alleging that I-40 was not reasonably safe due to the presence of elk on the highway. At trial, he contended that the state negligently had failed to evaluate the known hazard of elk crossing the highway, use appropriate fencing, clear cut vegetation, or reduce the speed limit. The state moved for summary judgment, arguing that it could not be held liable for an injury caused by a wild animal not in the state's possession or control. The trial court denied the motion, and the jury returned a substantial verdict in favor of the Booths. On appeal, the state argues that it was entitled to judgment in its favor as a matter of law.¹

¶ 3 Viewed in the light most favorable to upholding the verdict, Mealey v. Arndt, 206 Ariz. 218, ¶ 12, 76 P.3d 892, ¶ 12 (App.2003), the following facts were presented below and are not challenged by the state. Elk are indigenous to the area around I-40 in the proximity of the collision site, and their population had been increasing since the late 1980s. In the years preceding the collision, the state had placed signs on the relevant segment of highway which warned motorists they had entered "elk country." The state also placed elk and deer silhouette signs every five miles in that area. Elk generally weigh between 550 and 850 pounds. They are most active at night, when it is most difficult for drivers to see them. A traffic engineer testified on behalf of the state that even an attentive driver traveling at the posted speed limit of seventy-five miles per hour would not have time to react if an elk were to dart out onto the highway.

¶ 4 The fencing along I-40 is not designed to, and does not, keep elk off the highway. As the elk population increased, so too did the number of collisions between elk and automobiles. In the late 1980s, automobile collisions involving elk increased at rates of up to one hundred percent per year. On the section of I-40 within about five miles on either side of the accident site, there were 168 reported collisions between automobiles and elk or deer between 1994 and 2000—an average of over two collisions per mile per year. In response to the increased accident rate, the state posted additional warning signs but took no other measures aimed at preventing collisions with elk.

¶ 5 The Booths introduced evidence that the Federal Highway Administration has adopted standards providing that "[f]encing along a highway is a means of preventing unwanted and likely intrusion of animals ... from outside the right-of-way line ... into the vicinity of moving traffic or onto the operating right-of-way," and that seven- to ten-foot high fences "may be needed along the highway at the few elk and buffalo ranges in the western States."² An expert for the Booths testified that nine other states and Canada use eight-foot fences and underpasses to prevent elk and deer from accessing interstate highways. He also testified that wildlife warning signs are not effective in reducing collisions between animals and automobiles. Reports collected by an employee of the Arizona Game and Fish Department indicated that the construction of higher fences and wildlife underpasses could reduce such collisions by as much as ninety-six percent.

¶ 6 The Booths also introduced evidence that these and other additional steps to prevent collisions between vehicles and elk have been implemented on a different Arizona highway. The evidence included a report by the Arizona Department of Transportation, a portion of which provides that "[i]n 1994, Arizona State Route 260 [SR-260] was identified as a route requiring immediate action to reduce rapidly increasing accidents" involving deer and elk. According to the report, such collisions had occurred in one twenty-mile section of that highway at a rate of 1.22 collisions per mile per year between 1992 and 1997. The report characterized that accident rate as "excessive." The Booths also established that in conjunction with the widening of SR-260, the state had implemented a mediation plan called "Project Elk Alert." The project included public education to warn of the hazard on that particular roadway, vegetation management to improve visibility and reduce the amount of palatable vegetation on the road shoulders, and wildlife fences and underpasses designed to keep elk off the highway while allowing them to cross from side to side.

¶ 7 Citing the court's ability to "set the outer limits" of what may be considered a negligent act, the state argued in its briefs that we should adopt the "doctrine of ferae naturae" and hold as a matter of law that the state cannot be held liable for injuries caused by indigenous wild animals.³Ferae naturae means "of a wild nature or disposition." See Black's Law Dictionary 635 (7th ed.1999). The doctrine of animals ferae naturae relates primarily to property rights. See Nicholson v. Smith, 986 S.W.2d 54, 60-61 (Tex.App.1999). A wild animal, ferae naturae, as opposed to a domesticated animal, domitae naturae, is owned by the state or the people at large. An individual does not acquire property rights in an animal ferae naturae as long as the animal remains wild, unconfined, and undomesticated. Id. Even a landowner does not acquire property rights to the wild animals naturally existing on his or her land unless they are reduced to actual possession and control. Id.

¶ 8 From this doctrine has emerged the general principle that a landowner cannot be held strictly liable for the acts of animals ferae naturae on his land. See, e.g., id. This case, however, sounds in negligence, not strict liability, and even cases relied upon by the state recognize that the doctrine does not completely bar liability for claims based on the negligence of the defendant. "[M]ost courts [that] have considered the issue recognize the possibility that a claim for negligence may not be precluded by ferae naturae per se[;] ... [those] courts generally agree they may impose a duty on a premises owner" for negligent acts causing injury from wild animals. Id. at 61. In practice, few courts have actually imposed such a duty. Id. Given the fact that wild animals are not readily controllable and are often unpredictable, that result is not surprising. In most of the cases cited by the state, the defendants were found not liable precisely because they could not reasonably have foreseen an injury or protected against it. See, e.g., Brunelle v. Signore, 215 Cal.App.3d 122, 263 Cal.Rptr. 415, 419 (App.1989) (homeowner not liable for spider bite injury when, among other factors, he had never seen type of spider in or around home and had not seen particular spider before guest was bitten); Wamser v. City of St. Petersburg, 339 So.2d 244, 246 (Fla.Dist.Ct.App.1976) (no duty to guard or warn against an attack by an animal ferae naturae in the absence of reasonable foreseeability of danger); Rippy v. Fogel, 108 Pa.Cmwlth. 296, 529 A.2d 608, 610 (1987) (no governmental liability for collision with animal ferae naturae because risk was not conceivably correctable); Nicholson, 986 S.W.2d at 59-64 (considering foreseeability, likelihood of injury, and magnitude of burden of guarding against injury in determining liability for injury from animals ferae naturae).

¶ 9 The state cites no case in which a court has categorically barred negligence claims based on injuries caused by wild animals. Rather, in negligence cases, courts have used the term ferae naturae as shorthand for the general proposition underlying the doctrine—that wild animals exist throughout nature, they are generally not predictable or controllable, and therefore, without more, they are neither the property nor the responsibility of the owner or occupier of land on which they are found. Thus, the doctrine has not been historically applied so as to alter the traditional analysis of a negligence claim.

¶ 10 "The basic elements of actionable negligence are a duty owed to the plaintiff, a breach thereof and an injury proximately caused by the breach." Ballesteros v. State, 161 Ariz. 625, 627, 780 P.2d 458, 460 (App.1989). Duty is simply a question of whether "the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff." Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). If there is a duty, then a defendant must "act reasonably in light of the known and foreseeable risks. It is here, in determining whether the defendant acted reasonably or negligently, that the law concerns itself with specifics of defendant's conduct." Id. at 357, 706 P.2d at 369. What is reasonable...