Gibbs v. Jackson

• Decision Date: 10 June 1999
• Docket Number: No. 97-0961,97-0961
• Citation: 990 S.W.2d 745
• Parties: 42 Tex. Sup. Ct. J. 456 Naomi GIBBS, Petitioner, v. Shannon JACKSON, Respondent.
• Court: Texas Supreme Court

Page 745

990 S.W.2d 745

42 Tex. Sup. Ct. J. 456

Naomi GIBBS, Petitioner, v. Shannon JACKSON, Respondent.

No. 97-0961.

Supreme Court of Texas.

Argued Oct. 22, 1998.

Decided April 1, 1999.

Rehearing Overruled June 10, 1999.

Gregory P. Grajczyk, Milbank, SD, for Petitioner.

Robert D. Bennett, Gilmer, for Respondent.

Justice ABBOTT delivered the opinion for a unanimous Court.

This case considers the creation of a new common-law duty to keep horses from roaming onto farm-to-market roads in areas that have not adopted local stock laws. For the reasons given below, we decline to create that common-law duty. Accordingly, we reverse the court of appeals' judgment and render judgment that Jackson take nothing.

I

Shannon Jackson was driving her car on Farm-to-Market Road 49 in rural Upshur County when she collided with a horse named Tiny that was standing in the road. The collision injured Jackson, totaled her automobile, and killed Tiny. Jackson sued Naomi Gibbs, who had been keeping Tiny in a fenced pasture adjacent to the road. Jackson alleged that Gibbs negligently failed to properly maintain the fence around the pasture, failed to restrain Tiny, and failed to prevent Tiny from roaming unattended onto the road.

At trial, the parties disputed whether Tiny had ever previously escaped from Gibbs's pasture. There was no direct evidence, however, explaining how Tiny got out of the pasture and onto the road when struck by Jackson. Jackson testified that she returned to the accident site a few days after the collision and discovered that part of the fence next to the road was partially down and in disrepair. Gibbs contended that the fence was in good repair when the collision occurred but was damaged a few days after the incident when a drunk driver missed a curve and ran into the section of the fence in question.

Gibbs contended at trial that, regardless of the fence's condition or Tiny's corralability, she owed Jackson no duty to keep Tiny off the road because the collision occurred on a farm-to-market road in a "free-range" area. Essentially, Gibbs contended that she owed no duty because no local stock law had been adopted for the area of the farm-to-market road where Tiny was struck. The trial court rejected that argument and submitted a general negligence charge to the jury. The jury found Gibbs negligent and awarded Jackson $7,000 in damages, plus interest and costs.

The court of appeals affirmed. 959 S.W.2d 668. It concluded that Gibbs had no statutory duty to restrain Tiny but did have a common-law duty to exercise reasonable care to keep "domestic livestock from roaming at large on public roads." Id. at 673. The court of appeals imposed this duty because of "modern traffic conditions and the foreseeability of the highly dangerous condition created by the presence of domestic livestock on a public road." Id. at 672-73.

Gibbs petitions this Court to reverse the court of appeals' judgment and hold that she owes Jackson no common-law duty to prevent Tiny from being loose on the farm-to-market road. Jackson counters that a common-law cause of action is appropriate because our society cannot permit livestock to roam free on heavily traveled roadways.

II

This Court has never previously considered whether a person responsible for livestock has a common-law duty to ensure that the animals do not stray onto farm-to-market roadways. Texas courts of appeals have arrived at differing results when considering the issue in the absence of a controlling local stock law. Compare Merendino v. Burrell, 923 S.W.2d 258, 261 (Tex.App.--Beaumont 1996, writ denied) (assuming a common-law negligence duty to keep a bull off a farm-to-market road), and Miller v. Cozart, 394 S.W.2d 22, 24 (Tex.Civ.App.--Dallas 1965, no writ) (stating that appellant had a continuing duty to exercise ordinary care to prevent his cattle from escaping onto a farm-to-market road), with Hollingsworth v. King, 810 S.W.2d 772, 776-77 (Tex.App.--Amarillo) (refusing to recognize such a common-law duty "in the face of all the precedential authority that, in the absence of statutory direction, no common-law duty to fence exists in this state"), writ denied per curiam, 816 S.W.2d 340 (Tex.1991). In denying the application for writ of error in Hollingsworth, we expressed "no opinion" regarding the existence of a "common law duty to restrain livestock." Hollingsworth, 816 S.W.2d at 340.

Our refusal to adopt such a common-law duty today derives from the confluence of historic common law, century-old constitutional provisions, multiple legislative pronouncements, and local stock-law decisions. Under the English common law inherited by the United States, an owner of a domestic animal had a duty to prevent the animal from trespassing onto a neighbor's land, but had no duty to prevent the animal from straying onto a public roadway, unless the owner had prior knowledge that the animal had vicious propensities. ¹ Like many western states, Texas rejected the English common-law rule for animal trespasses on neighbors' property. ² When combined with the common-law rule of no duty to restrain animals from the roadway, the rejection of the common-law duty of animal owners to neighboring landowners rendered Texas "free-range" as a general rule. In Clarendon Land, Inv. & Agency Co. v. McClelland, 86 Tex. 179, 23 S.W. 576 (1893), this Court described the resulting rule:

Neither the courts nor the legislature of this state have ever recognized the rule of the common law of England which requires every man to restrain his cattle either by tethering or by inclosure.... It is the right of every owner of domestic animals in this state, not known to be diseased, vicious, or "breachy," to allow them to run at large....

Id. at 577-78; see also Pace v. Potter, 85 Tex. 473, 22 S.W. 300, 301 (1893) ("It is not contended that the rule of the common law, making it the duty of the owner of cattle to confine them to his own land, ... was ever in force in this state. It is inapplicable to our situation and the customs and habits of the early settlers of the country, and inconsistent with our legislation in regard to fences and stock."); Fennell v. Seguin St. Ry. Co., 70 Tex. 670, 8 S.W. 486, 486-87 (1888) ("There is no general law in Texas prohibiting owners from permitting their cattle to run at large.... [C]attle may lawfully run at large...."); Gholson v. Parrish, 92 S.W.2d 1113, 1114 (Tex.Civ.App.--Fort Worth 1936, no writ) (finding no duty to fence a public highway off from pasture lands used for grazing).

The framers of the 1876 Texas Constitution delegated to the Legislature the power to deviate from the free-range rule by passing laws regulating fences and livestock. Article 16, Section 22 of the Constitution states:

Fence laws. The Legislature shall have the power to pass such fence laws, applicable to any sub-division of the State, or counties, as may be needed to meet the wants of the people.

TEX. CONST. art. XVI, § 22. ³ Article 16, Section 23 states:

Regulation of live stock; protection of stock raisers; inspections; brands. The Legislature may pass laws for the regulation of live stock and the protection of stock raisers in the stock raising portion of the State, and exempt from the operation of such laws other portions, sections, or counties; and shall have power to pass general and special laws for the inspection of cattle, stock and hides and for the regulation of brands; provided, that any local law thus passed shall be submitted to the freeholders of the section to be affected thereby, and approved by them, before it shall go into effect.

TEX. CONST. art. XVI, § 23.

The Legislature has frequently exercised its constitutional authority in this area in an attempt to strike a balance between animal husbandry and public safety. Responding to the proliferation of automobiles, the Texas Legislature in 1935 prohibited livestock owners from permitting their animals to traverse or roam unattended on the right-of-way of a highway that had fences on both sides, and provided criminal penalties for violating the prohibition. See Act of May 8, 1935, 44 th Leg., R.S., ch. 186, § 1, 1935 Tex. Gen. Laws 467, 467. This statute was the first Texas departure from the old English rule of nonliability for animals at large on roadways. Later, the Legislature limited the prohibition to "knowingly" permitting animals to roam at large and expanded the prohibition to all U.S. highways and state highways whether the adjacent land was fenced or not, but specifically excluded farm-to-market roads. See Act of May 12, 1959, 56 th Leg., R.S., ch. 374, § 1, 1959 Tex. Gen. Laws 835, 835.

The Legislature has also provided for local stock laws since 1876, and has repeatedly rewritten the scope of those laws. See Act approved Aug. 15, 1876, 15 th Leg., ch. 98, §§ 1-8, 1876 Tex. Gen. Laws 150, 150-52, reprinted in 8 GAMMEL, THE LAWS OF TEXAS 1822-1897, at 986, 986-88 (Austin, Gammel Book Co. 1898) (first providing for elections to adopt local "stock laws" making livestock owners civilly liable for costs and damages if their hogs, sheep, or goats trespassed on neighbors' property, even if those neighbors failed to erect proper fences to protect their property); Act of Apr. 7, 1897, 25 th Leg., R.S., ch. 87, § 1, 1897 Tex. Gen. Laws 112, 112-13, reprinted in 10 GAMMEL, THE LAWS OF TEXAS 1822-1897, at 1166, 1166-67 (Austin, Gammel Book Co. 1898) (making a willful violation of one of these stock laws a penal offense, punishable by a fine); Act of May 20, 1899, 26 th Leg., R.S., ch. 128, §§ 1, 14, 16, 1899 Tex. Gen. Laws 220, 220-22 (expanding the possible scope of local stock laws in some counties to include horses and cattle, and giving an injured landowner a right to civil damages); Act approved Apr. 3, 1907, 30 th Leg., R.S., ch. 57, § 1, secs. 1, 20a, 20b, 1907 Tex. Gen. Laws 123, 123-24 (allowing more counties to impose stock laws that applied to horses and cattle, including Upshur County, and...