Carrow Co. v. Lusby

• Decision Date: 18 December 1990
• Docket Number: No. CV-89-0328-PR,CV-89-0328-PR
• Parties: CARROW COMPANY, Counterdefendant/Appellee, v. Michael LUSBY and Kay A. Lusby, husband and wife, Counterclaimants/Appellants.
• Court: Arizona Supreme Court

Page 747

804 P.2d 747

167 Ariz. 18

CARROW COMPANY, Counterdefendant/Appellee, v. Michael LUSBY and Kay A. Lusby, husband and wife, Counterclaimants/Appellants.

No. CV-89-0328-PR.

Supreme Court of Arizona, In Banc.

Dec. 18, 1990.

Reconsideration Denied Feb. 21, 1991.

[167 Ariz. 19] Kimble, Gothreau & Nelson, P.C. by Stephen E. Kimble, David F. Toone, Tucson, for plaintiff.

Juan Perez-Medrano, Daniel C. Gloria, Tucson, for defendants.

OPINION

CORCORAN, Justice.

Counterclaimants Kay and Michael Lusby (the Lusbys) petitioned for review of a court of appeals opinion affirming the trial court's summary judgment against them on their counterclaim. We granted review to determine whether A.R.S. § 24-502 applies to an action for personal injuries sustained by a motorcyclist when he collides with a heifer on a public highway located in open range. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.

Factual and Procedural Background

Carrow Company (Carrow Co.) sued the Lusbys in Justice Court seeking damages in the amount of $2,500.00 for the loss of its heifer. Carrow Co. alleged that its property loss resulted from Michael Lusby's negligent operation of his motorcycle. In their answer the Lusbys counterclaimed, alleging that Carrow Co. was negligent in allowing its heifer to wander onto the public highway. The counterclaim sought damages exceeding $50,000.00 for Michael Lusby's injuries, and damages exceeding $25,000.00 for Kay Lusby's loss of consortium and pain and suffering. The case was transferred to superior court pursuant to A.R.S. § 22-201(F), which requires such a transfer upon the filing of a counterclaim seeking damages in excess of $2,500.00.

Carrow Co. filed a motion for summary judgment pursuant to rule 56, Arizona Rules of Civil Procedure, seeking dismissal of the Lusbys' counterclaim. Carrow Co. contended that it owed no duty of care to the Lusbys. Carrow Co. based its argument on Arizona case law holding that on open range, cattle have a right to be on the public highway and drivers are responsible to exercise caution to avoid collisions with cattle. In opposition, the Lusbys contended that considerations of public health and safety dictate that owners of livestock must exercise reasonable care in managing their herds.

Carrow Co. submitted a statement of facts in support of summary judgment and the Lusbys submitted a statement of facts in opposition, both pursuant to rule 4, Arizona Uniform Rules of Practice. Carrow Co. submitted an affidavit by Donald Rowley, its owner, and Michael Lusby submitted an affidavit. The statements and affidavits, considered in a light most favorable to the Lusbys, set forth the facts. Carrow Co. is engaged in cattle ranching in open range encompassing Arivaca Road. Michael Lusby states in his affidavit that on June 17, 1987, he drove his motorcycle along Arivaca Road and a Hereford heifer, owned by Carrow Co., "suddenly crossed in front of him without warning," causing an accident which killed the heifer and injured Lusby.

Based on this record, the trial court granted summary judgment for Carrow Co. on the counterclaim, and ordered that judgment be entered, because there was "no just reason for delay." See rule 54(b). The trial court did not resolve the complaint by Carrow Co. and it is not involved in this proceeding. The Lusbys appealed, arguing that the trial court erroneously relied on cases that misconstrued § 24-502 as barring recovery by motorists injured in collisions with cattle on public highways in open range. A.R.S. § 24-502 provides:

An owner or occupant of land is not entitled to recover for damage resulting from the trespass of animals unless the land is enclosed within a lawful fence, but this section shall not apply to owners or occupants of land in no-fence districts.

Additionally, the Lusbys advanced a constitutional argument not raised in the trial court. They contended that, if the trial court's interpretation of § 24-502 was correct, the statute violates Ariz. Const. art. 2, §§ 13 (equal privileges and immunities) and 31 (damages for death or personal injuries), and art. 18, § 6 (recovery for damages for injuries).

The court of appeals affirmed, finding that livestock owners have no duty to keep their cattle off public highways and are absolved from liability by § 24-502. Carrow Co. v. Lusby, 163 Ariz. 450, 788 P.2d 1201 (App.1989). The court addressed, but rejected, the Lusbys' constitutional arguments. 163 Ariz. at 451-52, 788 P.2d at 1202-03. We granted review and requested supplemental briefing on the applicability of § 24-502 to actions by motorists seeking damages for personal injuries caused by cattle entering public highways. We conclude that the statute is inapplicable.

Discussion

1. Applicability of A.R.S. § 24-502

In interpreting statutes, we must determine the intent of the legislature. City of Phoenix v. Superior Court, 139 Ariz. 175, 178, 677 P.2d 1283, 1286 (1984). Legislative intent often can be discovered by examining the development of a particular statute. State v. Sweet, 143 Ariz. 266, 271, 693 P.2d 921, 926 (1985). Section 24-502, which the trial court interpreted as a legislative pronouncement that livestock owners owe no duty of care to motorists, was originally enacted in 1901 as part of the Territorial Code. See Revised Statutes § 2652 (1901). In its original form, the statute provided:

No person or persons shall be entitled to damages for stock trespassing upon cultivated or improved land unless such land is enclosed within a lawful fence.

In 1913, the First Legislature considered the statute as part of Senate Bill 56, which included a preamble describing the act as "providing for damages for trespass of live stock on lands enclosed with lawful fences." S.B. 56, 1st Leg. 3d Sess. (1913). As enacted, the statute read:

No owner or occupant of land within this state shall be entitled to damages resulting from the trespass of animals thereon, unless such land is enclosed within a lawful fence; provided, that this section shall not apply to owners or occupants of lands in No-fence Districts as provided in Sec. 6 [Par. 3254] of this act.

Rev.Stat. (Civil) § 3250 (1913).

In Arizona, as in other western states, this provision, commonly known as a fencing-out statute, is only a part of a comprehensive statutory scheme governing the coexistence of the cattle industry with other valuable land use. A.R.S. §§ 24-341 through -345 provide for the formation of no-fence districts by petition of a majority of all taxpayers in certain areas. A.R.S. § 24-341(A). Livestock may not run at large in no-fence districts. A.R.S. § 24-342. Upon formation of a no-fence district, owners of livestock become liable for damages for any trespass by their animals, even if the person damaged failed to enclose the land with a lawful fence. A.R.S. § 24-344. See Ricca v. Bojorquez, 13 Ariz.App. 10, 473 P.2d 812 (1970). Additionally, violators are subject to criminal liability for "recklessly" allowing livestock to run at large. In the event that modern development renders the law of the open range unworkable, including the fencing-out statute, residents are free to form a no-fence district. See Ricca, 13 Ariz.App. at 11, 473 P.2d at 813.

To determine whether these statutes, particularly § 24-502, govern the liability of livestock owners to motorists injured in collisions with cattle, we examine the statutory language chosen by the legislature. We interpret the words of a statute using their ordinary meanings, unless the context of the statute and the act of which it is a part require otherwise. A.R.S. § 1-213; State Comp. Fund v. Nelson 53 Ariz. 450, 453, 737 P.2d 1088, 1091 (1987). We also consider the policy behind the statute and the evil it was designed to remedy. See State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 251, 254, 782 P.2d 727, 730 (1989). In its original form, the fencing-out statute applied only to actions for damages for stock trespassing on cultivated or improved land. After statehood, the fencing-out statute was enacted employing language very similar to the current version. However, the 1913 statute limited its terms to actions brought by owners or occupants of land.

In considering this case, this court became concerned that the statute relied upon by both the parties, the trial court, and the court of appeals, may be entirely inapplicable. Based upon the language of the statute, we find it impossible to apply the statute to personal injuries incurred by a motorcyclist riding on a public highway. Initially, we question whether Michael Lusby's injuries constitute "damage resulting from the trespass of animals." In open range territory, cattle may lawfully enter upon the public highway. See Stuart v. Castro, 76 Ariz. 147, 151, 261 P.2d 371, 373 (1953). This conclusion is implied by § 24-342, which makes such activity unlawful in areas designated as no-fence districts, and renders livestock owners subject to civil and criminal liability for permitting their animals to run at large in those areas.

However, even assuming, without deciding, that Michael Lusby's injuries constitute "damage resulting from the trespass of animals," we cannot find that the term "owner or occupant of land" is so broad as to encompass a motorist traveling on a public highway. We base this conclusion not only on the language of § 24-504, but on the evolution, since territorial days, of our entire statutory scheme governing the relationship of livestock owners to society.

Neither the general definitional statute, A.R.S. § 1-215, nor Title 24, ch. 3, art. 1, relating to trespassing livestock, includes a definition of "owner or occupant." The evolution of our fencing-out statute, however, illustrates that it was intended to provide a remedy to persons such as landowners, tenants, and perhaps even adverse possessors, who suffer damages caused by trespassing livestock. To recover under the statute, owners or...