Brookover v. Roberts Enterprises, Inc.

• Decision Date: 08 May 2007
• Docket Number: No. 1CA-CV 05-0444.,1CA-CV 05-0444.
• Citation: 215 Ariz. 52,156 P.3d 1157
• Parties: Ronald and Tonya BROOKOVER, husband and wife, Plaintiffs/Appellants, v. ROBERTS ENTERPRISES, INC., an Arizona corporation, Defendant/Appellee.
• Court: Arizona Court of Appeals

156 P.3d 1157

215 Ariz. 52

Ronald and Tonya BROOKOVER, husband and wife, Plaintiffs/Appellants, v. ROBERTS ENTERPRISES, INC., an Arizona corporation, Defendant/Appellee.

No. 1CA-CV 05-0444.

Court of Appeals of Arizona, Division 1, Department E.

May 8, 2007.

Warnock, MacKinlay & Associates, P.L.L.C. By Brian R. Warnock, Krista M. Carman, Phoenix, Attorneys for Appellants.

Kunz Plitt Hyland Demlong & Kleifield By Timothy R. Hyland, Elliot H. Wernick, Julie R. Barton, Phoenix, Attorneys for Appellee.

OPINION

THOMPSON, Judge.

¶ 1 Plaintiffs-appellants Ronald and Tonya Brookover appeal the trial court's decision granting summary judgment to defendant-appellee Roberts Enterprises, Inc. (Roberts). The Brookovers claimed that Roberts was negligent in allowing its cow to enter the highway where it collided with the Brookovers' automobile. On appeal, they contend that fact issues exist regarding Roberts's negligence and that the doctrine of res ipsa loquitur applies. For the following reasons, we affirm the trial court's grant of summary judgment.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 We view the facts in the light most favorable to the party against whom judgment was entered. Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App.1996). On September 16, 2003, the Brookovers were driving from Phoenix to their home in Salome, Arizona. Ronald Brookover (Brookover) was driving and Tonya Brookover was seated in the right front passenger seat. They exited Interstate 10 onto the Salome Highway, which is a two-lane paved road with one lane of traffic in each direction. The Salome Highway runs through open range land. The Brookovers were traveling approximately fifty-five miles per hour when Brookover became aware of a cow approximately one hundred to one hundred and fifty feet ahead and to the left of him. He began to brake and move to the right edge of the road to go around the cow. He then saw a second cow approximately three to four feet from the right front of his vehicle and struck that cow with the right front of the vehicle. The collision caused the vehicle to roll and land on its roof.

¶ 3 At the location where the accident occurred, the Salome Highway runs through property known as the Clem Allotment, which at the time was leased by Roberts for grazing purposes. Roberts leased the property in July 2003, and first put cattle on it in August. Roberts did not construct any fence along the Salome Highway. This accident was the first reported incident involving an animal and a motor vehicle since Roberts occupied the leased premises. Brookover was aware of the presence of cattle along the Salome Highway, but had never before seen cattle on the Clem Allotment.

¶ 4 The Brookovers filed a claim of negligence against Roberts in February 2004. The Second Amended Complaint alleged that Roberts was the owner of livestock that was allowed to negligently enter onto the Salome Highway and was struck by the Brookovers' vehicle, and that Roberts knew of the propensity of its livestock to enter onto the highway and was negligent in not taking any steps to protect the public from its cattle on the highway. The Second Amended Complaint also alleged that the presence of cattle on the roadway was under the control of the defendants, that the Brookovers were unaware of the circumstances that caused the cattle to be on the roadway, and that they therefore relied on the doctrine of res ipsa loquitur.

¶ 5 Roberts moved for summary judgment, arguing that, as a matter of law, under Carrow Co. v. Lusby, 167 Ariz. 18, 804 P.2d 747 (1990), it could not be found negligent for merely failing to prevent its cattle from entering the highway. Roberts also argued that the Brookovers could not demonstrate that the accident was of a kind that ordinarily does not occur in the absence of negligence, one of the requirements to apply the doctrine of res ipsa loquitur.

¶ 6 In their response, the Brookovers argued that the facts of each case had to be considered to determine if the accident was the result of the mere failure to prevent cattle on the highway and therefore within the standard of care outlined in Carrow. The Brookovers argued that Roberts was aware through its ranching experience that having an unfenced, paved, high-speed highway traversing grazing land would result in more collisions between automobiles and cows than would be the case where the road was dirt and unimproved. They contended that Roberts had complained to authorities on other occasions but took no such steps with regard to the Clem Allotment. The Brookovers also asserted that Roberts's decision to graze cattle on an unprotected lease and its failure to erect fencing at known crossing points, to post warning signs, or to advise authorities of the presence of cattle constituted issues requiring a jury determination of reasonableness.

¶ 7 The trial court granted Roberts's motion for summary judgment, finding that the Brookovers' claim was, in essence, that Roberts had not prevented its cattle from entering the highway, which did not fall below the standard of care as articulated in Carrow. The Brookovers moved for reconsideration. The trial court denied the motion without requesting a response from Roberts and entered judgment in favor of Roberts. The Brookovers timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(B)(2003).

DISCUSSION

¶ 8 Summary judgment may be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c). Summary judgment should be granted "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). In reviewing a motion for summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App.2000). We view the facts and the inferences drawn from those facts in the light most favorable to the party against whom judgment was entered. Prince, 185 Ariz. at 45, 912 P.2d at 49. We review the decision on the record made in the trial court, considering only the evidence presented to the trial court when it addressed the motion. Phoenix Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292, 877 P.2d 1345, 1348 (App.1994); GM Dev. Corp. v. Cmty. Am. Mortgage Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App.1990).

¶ 9 To establish a claim for negligence, a plaintiff must prove the existence of a duty of the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. Boyle v. City of Phoenix, 115 Ariz. 106, 107, 563 P.2d 905, 906 (1977). The standard of care owed by a livestock owner in Arizona was defined in Carrow Co. v. Lusby, 167 Ariz. 18, 24, 804 P.2d 747, 753 (1990). In Arizona, "an owner of livestock owes a duty of ordinary care to motorists traveling on a public highway in open range." Id. at 24, 804 P.2d at 753. The standard is one of reasonable conduct in light of the apparent risk. Id. However, "in open range territory, the mere failure to prevent one's cattle from entering the highway, by erecting fences or otherwise, does not constitute conduct falling below the standard of care required of livestock owners." Id. at 25, 804 P.2d at 754. To establish a breach of duty by a livestock owner in open range territory, a plaintiff must point to specific acts or omissions by the defendant that caused the damages. Id. Carrow does not provide further guidance as to what types of acts or omissions might establish a breach of standard of care.

¶ 10 On appeal, the Brookovers argue that they presented sufficient evidence to raise a question of fact as to whether Roberts breached a standard of ordinary care other than by merely failing to prevent its cattle from entering the highway. The Brookovers presented evidence that Roberts —through Marvin Roberts, one of two shareholders of Roberts Enterprises, Inc., and Norman Patrick Lauderdale, the ranch foreman for Roberts Enterprises, Inc.—was aware of the risk of significant numbers of collisions between cattle and automobiles when cows were allowed to graze in the vicinity of a paved highway. Marvin Roberts had approximately thirty years and Lauderdale approximately fifty years of experience in the cattle business. Each testified in deposition to an increased number of collisions between automobiles and cattle when a road passing through a grazing area is paved. Marvin Roberts testified that, with regard to three other ranches he had previously leased or owned, he noted a definite increase in cattle-automobile collisions after the road was paved. In one case he expressed the wish that the county had fenced the road to protect his cattle and motorists on the highway.

¶ 11 Roberts argues that its knowledge and experience regarding other ranches is irrelevant because none of it relates to any accidents on the Salome Highway through the Clem Allotment. Roberts also argues that the Brookovers have not demonstrated sufficient similarities between the specific conditions and locations under which the prior collisions at other ranches occurred and the conditions under which the Brookover accident occurred.

¶ 12 For purposes of showing notice of a dangerous condition, evidence of prior incidents must be shown to have occurred under conditions similar to the conditions of the incident at issue. Burgbacher v. Mellor, 112 Ariz. 481, 483, 543 P.2d 1110, 1112 (1975). Conditions, however, need be similar only in general character and not precisely the same. Id. (citation omitted).

¶ 13 Here, the record indicates that the...