Johnson v. Patterson, No. 2007-CA-000884-MR (Ky. App. 3/21/2008)
| Decision Date | 21 March 2008 |
| Docket Number | No. 2007-CA-000884-MR.,2007-CA-000884-MR. |
| Parties | April JOHNSON, Appellant, v. Terry PATTERSON, Appellee. |
| Court | Kentucky Court of Appeals |
David M. Blank, Covington, Kentucky, Briefs and Oral Argument for Appellant.
Ruth H. Baxter, Carrollton, Kentucky, Brief and Oral Argument for Appellee.
Before: ACREE and NICKELL, Judges; BUCKINGHAM, Senior Judge.1
April Johnson appeals from a judgment of the Owen Circuit Court based on a directed verdict for Terry Patterson following a jury trial. We vacate and remand for a new trial.
Johnson was driving to work on U.S. Highway 127 in Owen County on the morning of January 15, 2003, at around 7:00 a.m. when she struck a calf that had walked onto the roadway. The calf belonged to Patterson, who owned a farm nearby. Johnson filed a civil suit against Patterson in the Owen Circuit Court. She claimed that as a result of the injuries she suffered in the accident, she was unable to continue her employment as a special education teacher and also incurred substantial medical bills.
Patterson, who raises beef cattle, had twenty-five to thirty calves in a fenced lot on his property. They had been kept in this separate enclosure for nearly two months in order to wean them from their mothers. In addition to a wire fence surrounding the lot, the farm itself was enclosed by an electric fence.
In order to reach the highway, the calves pushed down the wire fence around their enclosure2 and then traveled approximately 200 yards to the electric fence and also pushed it down before proceeding to the road, which was another 150 yards away. The only explanation for the escape that Patterson was able to provide was that a wild dog or coyote likely had frightened the calves, causing them to stampede through the fences and onto the highway.
At trial, testimony regarding the fences and the calves was provided by Patterson, his wife Billie, and their farmhand, Diana Toole. They all testified that the fences were regularly maintained. Patterson testified that although the accident occurred around the time he was leaving for work that morning, he noticed nothing unusual. Billie testified that she also noticed nothing unusual, although she was showering at about the time of the accident. Toole had not yet arrived at the farm when the accident occurred. No evidence was offered that a dog or coyote had frightened the animals as Patterson had speculated. Patterson was not able to offer any other explanation for the calves' escape.
At the close of all the evidence, the trial court granted a directed verdict for Patterson. This appeal by Johnson followed. She argues that the trial court erred in granting the directed verdict because Patterson had offered no more than speculation to rebut the presumption of his negligence.
In ruling on a motion for a directed verdict, "the trial court must consider the evidence in its strongest light in favor of the party against whom the motion was made and must give him the advantage of every fair and reasonable [inference] that the evidence can justify." Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991). A directed verdict must not be entered "unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.App. 1985). "On appeal, the appellate court considers the evidence in the same light." Lovins, 814 S.W.2d at 922. But, "[o]nce the issue is squarely presented to the trial judge, who heard and considered the evidence, a reviewing court cannot substitute its judgment for that of the trial judge unless the trial judge is clearly erroneous." Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998).
The pertinent statute, Kentucky Revised Statute (KRS) 259.210, states in relevant part:
(1) No person shall permit any cattle owned by him or under his control or in his custody, to run at large.
(2) If any damage is committed by cattle permitted to run at large, the owner of the cattle shall be liable for all damages, whether the place where the damages occurred is inclosed by lawful fence or not. The person damaged shall have a lien on the cattle committing the damage for the amount of the damage and cost of suit.
The language of the statute has been construed to mean that
the unexplained presence of livestock on the highway creates against the owner or custodian of the livestock a rebuttable presumption of negligence which will entitle an injured plaintiff to a directed verdict as to the defendant's negligence, unless the animal's keeper adduces rebutting evidence on that issue.
Rankin v. Blue Grass Boys Ranch, Inc., 469 S.W.2d 767, 769 (Ky. 1971), superseded on other grounds by Zurich Am. Ins. Co. v. Haile, 882 S.W.2d 681, 686 (Ky. 1994). The rationale behind this rule was explained as follows:
After the plaintiffs established that the accident happened and offered proof that the defendant owned the guilty cow, it seems to us that it would not be unreasonable to require the owner of the cow, who had peculiar means of access to the facts as to how the cow got out, to make those facts known to the court. Such procedure is much more logical and sensible than to require the plaintiffs to offer proof as to how the cow escaped.
Ellington v. Strader, 285 S.W.2d 497, 498 (Ky. 1956).
When granting Patterson's motion for a directed verdict, the trial court based its decision on the fact that Johnson had failed to offer sufficient evidence to rebut Patterson's testimony that his fences were properly maintained:
In this case, from the testimony presented today, I don't think there's any testimony indicating why the jury should disregard the defendant's testimony regarding the fences except speculation.
Ordinary practices or his ordinary care. No one has testified that for the cattle to be out, for instance, someone must have done something wrong, which would have violated the duty of ordinary care.
The defendant has presented sufficient evidence to rebut the prima facie case. In that case, the duty of non-persuasion falls on the plaintiff as indicated by the case law.
There's been no proof of a higher standard than that proposed by the defendant. He testified that he maintained it, according to medium or higher standards in the community. The standard is one of ordinary care, not extraordinary care. The only substantial evidence in this case is that the cattle were out, beyond that it's speculation or conjecture as to whether there was a violation of any ordinary care of duty by the defendant.
And, for that reason I will direct a verdict on behalf of the defendant, because I cannot find there's any evidence by which a reasonable jury can find that he had violated his duty of ordinary care, which was the first instruction they would have been given.
The judge also stated to the jury:
Some of you, by your questions, have indicated, what is ordinary care in keeping up fencing? The only testimony provided in this case through this point has been testimony from the defendant that he exercised ordinary care. The plaintiff has offered no countervailing testimony or witnesses to say that there was something done improperly except for the fact the cattle were out on the road. The law says if they're out there, these parties have to come forward with some evidence to show why they were out there. I think they brought forth reasonable evidence about that. And, from what you all have, I don't think you have any idea of whether ordinary care was exercised, other than the testimony of the defendant, and that was that he exercised ordinary care.
In the Rankin case, the court was confronted with a similar factual situation. In that case, a mule and a pony escaped from a farm owned by Cowgill. The plaintiff, Rankin, who was driving a dairy truck, collided with the mule and was injured. At trial, Cowgill was unable to explain how the animals escaped. She introduced evidence that her fences and gates were in excellent condition and sufficiently strong and high to restrain livestock.
The mule and pony had only recently been brought to Cowgill's property, and she had not seen them. There was no evidence that they had been given water during the time they were there. In addition, there was snow on the ground and thus perhaps a question as to whether they had an adequate food supply. Rankin introduced evidence from an experienced farmer who stated that mules or ponies left without food or water would attempt to escape in order to seek the food and water they desired.
There was no direct evidence, however, as to how the animals escaped from their enclosure and made their way to the highway. Cowgill had no personal knowledge of the whereabouts of the animals before the accident occurred, and there was no testimony indicating whether the gates were open or closed immediately after the accident. Further, there was no evidence that she tried to ascertain how the animals had escaped.
The jury found Cowgill liable for Rankin's injuries. On appeal, Cowgill argued that the evidence on her behalf was so compelling that it completely destroyed the "rebuttable presumption" that arose when it was shown that the animals were at large and that the matter should not have been allowed to go to the jury. She argued that the jury was permitted to speculate on the basis of an inference of negligence that lacked evidentiary support except for the basic fact that the mule was on the highway.
The appellate court stated that "[i]n the present case there is no evidence of any defective fencing, but there is the unexplained presence of the animals on the road." Rankin, 469 S.W.2d at 770. The court further stated that "the failure of the defendant to offer any reasonable explanation for the escape of the animals, when considered in the light of all...
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