Fisel v. Wynns, 93-2207

• Decision Date: 14 October 1994
• Docket Number: No. 93-2207,93-2207
• Citation: 650 So.2d 46
• Parties: 19 Fla. L. Weekly D2182 Paula Michelle FISEL, Appellant, v. William C. WYNNS and Frank R. Wynns, Appellees.
• Court: Florida District Court of Appeals

Page 46

650 So.2d 46

19 Fla. L. Weekly D2182

Paula Michelle FISEL, Appellant, v. William C. WYNNS and Frank R. Wynns, Appellees.

No. 93-2207.

District Court of Appeal of Florida Fifth District.

Oct. 14, 1994.

Opinion Certifying Question

Feb. 17, 1995.

Harry T. Hackney, Cummins, Mueller & Judson, P.A., Leesburg, for appellant.

Frank A. Miller, Stuart & Strickland, P.A., Brooksville, for appellees.

EN BANC

HARRIS, Chief Judge.

We have chosen to hear this case en banc.

Paula Fisel, driving on a county road at night, was injured when she unexpectedly ran into a cow standing in the road. It is undisputed that the cow was owned (it was killed as a result of the accident) by William and Frank Wynns and had escaped their pasture through an open gate. When Fisel failed to rebut the testimony (by deposition) of Frank Wynns that he lived alone on the forty acres on which the cattle were kept; that he had no employees; that although he had three gates to the forty acres, the one involved in this action was at the rear of his property and some 1,400 feet from the county road involved herein; that his property was fenced and had an appropriate gate; that he closed the gate the day before the accident and did not use the gate again; and that he had no visitors and that he is unaware how his gate came to be open, summary judgment was entered in favor of the Wynns. Fisel appeals; we affirm.

Before the enactment of fencing requirements, Florida was an open-range state. During this period, not only would a motorist involved in an accident with roaming livestock not be entitled to recovery, he or she would be responsible for the rancher's loss because of the death of the livestock. Then the legislature enacted chapter 588 which, after establishing the legal requirements for a fence and gate, provides:

588.14 Duty of Owner.--No owner shall permit livestock to run at large on or stray upon the public roads of this state.

588.15 Liability of Owner.--Every owner of livestock who intentionally, willfully, carelessly or negligently suffers or permits such livestock to run at large upon or stray upon the public roads of this state shall be liable in damages for all injury and property damage sustained by any person by reason thereof. ¹

It is suggested that the mere presence of the cow on the roadway is sufficient evidence of violation of the above statutes to establish negligence per se. Alternatively, it is contended that the summary judgment is Our reading of the decisions of our supreme court and the other district courts of this state convince us that neither position is viable.

inappropriate because the Wynns did not establish that they took all reasonable precautions to prevent the release of the cattle by a trespasser (even though there is no indication that there had ever been a trespasser in the area).

To "permit" the livestock to run at large requires that the owner either willfully lets the cattle roam, acquiesces in conditions which permit the cattle to roam, or fails to take action which the owner knows or should know is necessary to prevent the cattle from roaming. That is why the statute requires that negligence (or an intentional act) must be proved in order to establish liability. In Selby v. Bullock, 287 So.2d 18, 21 (Fla.1973), the supreme court held:

The Warren Act [the statutes involved in this action] has delegated responsibilities and rights among livestock owners and motorists consistent with the goals of promoting the safety of highway users and the livestock industry. Any modification of this position should be done by the Legislature. To require fencing by the livestock owner and, in addition thereto, hold him strictly liable would place an impossible burden on the livestock industry. Those in the livestock industry would become virtual insurers, and this would retard and diminish stock raising as an important part of Florida agri-business.

The legislature has not altered the act nor has the supreme court changed the public policy since Selby. And while the presence of a cow in the road indicates the probable negligent or willful act of someone, such act may not be attributed to the rancher without evidence.

It is not disputed that the Wynns had a fence that met the statutory definitions [section 588.011(1) and (2) ] and had a gate which complied with section 588.011(3)(a). The legislature did not require that the gate be locked. The legislature also provided that a cattle guard would be an acceptable alternative to a gate, as opposed to an additional requirement.

The plaintiff presented nothing at the hearing on the motion for summary judgment to create an issue as to whether the Wynns "intentionally, willfully, carelessly, or negligently" left the gate open. Further, there was no issue raised as to whether a visitor (at least invited) left the gate open. The plaintiff urges on appeal, however, without appropriate pleadings and with no evidence, that it is possible that another person, uninvited, came later and opened, and left open, the gate. In such case, under the present statute and under the allegation of the complaint, would the Wynns be liable?

In this case, the only allegation to justify liability is that the Wynns "intentionally, willfully, carelessly, or negligently suffered or permitted their livestock to run at large upon or stray upon the public roads ..." Based on the record before the court at the time of the hearing on the motion for summary judgment, the only possible way to avoid entry of a judgment in favor of the Wynns would be, even without appropriate pleadings and without any support in the record, to assume that an uninvited person was responsible for the release of the cow (because it is unlikely that there could have been an escape from the fenced enclosure without the intervention of a person to open the gate), and that the Wynns were liable for the conduct of this other person.

This issue was present, but not addressed, in Gordon v. Sutherland, 131 So.2d 520 (Fla. 3d DCA), cert. denied, 135 So.2d 742 (Fla.1961). The facts were very similar. Cows in the highway adjacent to Sutherland's property caused an accident. Sutherland, admitting ownership, testified that he checked the gates and found them secure shortly before the accident. He found after the accident that, while the gate was still closed, someone had tampered with the rope holding the gate closed. Other evidence also indicated the presence of an intruder. The court refused to find liability, stating:

In view of [Lynch v. Durrance, 77 So.2d 458 (Fla.1955) ] there is no merit in appellant's contention that the fact that an animal was running at large on the highway justified an inference that defendants had Id. at 522.

violated the statute. The evidence before the trial judge was completely devoid of proof that the defendants negligently suffered or permitted the cows to be on the highway; therefore, there was no evidence of negligence and no prima facie case. Any other holding would disregard the plain language of the statute.

Gordon does not discuss any potential liability on the part of Sutherland because of the actions of the trespasser--perhaps because it was not pled; perhaps because there was nothing in the record to indicate that Sutherland could reasonably have foreseen that a trespass would result in his cattle being released onto the highway. But Sutherland had four gates, each of which opened directly onto a public highway. Wynns' gate opened 1400 feet down a limerock road from the nearest county road.

In Lee v. Hinson, 160 So.2d 166 (Fla. 2d DCA), cert. denied, 166 So.2d 594 (Fla.1964), the court considered another case almost identical to ours. There, two horses escaped from an enclosure through an open gate and caused an accident. On summary judgment, the owner denied that he, or anyone working for him, had left the gate open. Plaintiff presented nothing in opposition. The court upheld the summary judgment stating:

In our view, this record discloses a classic example of the intent and purpose to be accomplished by the rule authorizing summary judgment. The defendant in this case met the burden imposed upon movants for summary judgment by clearly and unequivocally establishing, by depositions and affidavits supporting his motion, that even after drawing all reasonable inferences in favor of the plaintiff, there are no material facts by virtue of which the plaintiff's position might be sustained upon trial ... The record here establishes, without genuine issue as to any material fact, that neither the defendant nor his servants or agents, for whose acts the defendant would be responsible, was negligent. The mere fact that the defendant's horses were running at large upon the public highway [and the fact that the defendant's gate was wide open] does not justify an inference that the defendant intentionally, willfully, carelessly or negligently permitted them to so run at large ...

Id. at 167. Again, the court did not discuss the defendant's liability for the acts of trespassers--perhaps because it was not raised in the pleadings.

In Davis v. Johnson, 288 So.2d 554 (Fla. 2d DCA 1974), the court explicitly considered the owner's liability for the acts of a trespasser in this type of case for the first time. In distinguishing Gordon and Lee, the court stated:

However, the depositions reveal that neighborhood children and older persons often went in and out of the pasture, perhaps at will, and frequently left the gate open after passing through. The defendant's cattle had escaped through the open gate on a number of previous occasions.

A land owner can be held liable for injuries inflicted by trespassers upon persons outside his premises if he had reason to anticipate that the trespasser would engage in the conduct which caused the injury and thereafter had a reasonable opportunity to prevent or control such conduct.

Id. at 555 (citations omitted).

Unlike Davis, the depositions in the...