Kasem v. State Farm Fire & Cas. Co.

• Decision Date: 10 February 2017
• Docket Number: NO. 2016 CA 0217,2016 CA 0217
• Citation: 212 So.3d 6
• Parties: Zaine KASEM v. STATE FARM FIRE AND CASUALTY COMPANY, Joyce B. Williams, and H.R. Williams Cattle Company
• Court: Court of Appeal of Louisiana — District of US

212 So.3d 6

Zaine KASEM
v.
STATE FARM FIRE AND CASUALTY COMPANY, Joyce B. Williams, and H.R. Williams Cattle Company

NO. 2016 CA 0217

Court of Appeal of Louisiana, First Circuit.

FEBRUARY 10, 2017
Rehearing Denied February 24, 2017

JOSEPH M. BRUNO, DANIEL A. MEYER, NEW ORLEANS, LA, ATTORNEYS FOR PLAINTIFF–APPELLANT ZAINE KASEM

JULIE N. deGENERES, BATON ROUGE, LA, ATTORNEY FOR DEFENDANTS–APPELLEES STATE FARM FIRE AND CASUALTY COMPANY, JOYCE B. WILLIAMS, AND H.R. WILLIAMS CATTLE COMPANY

BEFORE: PETTIGREW, McDONALD, HOLDRIDGE, AND CHUTZ, JJ., and CALLOWAY,¹ J. Pro Tem.

PETTIGREW, J.

The plaintiff, Zaine Kasem (Kasem), appeals a judgment that granted summary judgment in favor of the defendants, Joyce B. Williams, H.R. Williams Cattle Company (HRW), (defendants), and their insurer, State Farm and Fire Casualty Company, and dismissed Kasem's claims against them for injuries she sustained allegedly when she was "run over" by a cow that had gotten loose from a herd co-owned by Williams and HRW. The cow escaped through a fence that ordinarily enclosed the herd, but had been damaged by a fallen tree. For the following reasons, we reverse and remand.

FACTUAL BACKGROUND

This incident occurred on March 24, 2012, in St. Gabriel, Louisiana. A few days prior, 3.77 inches of rain fell during a storm that occurred between approximately 8 a.m. on March 21, 2012 through 8 a.m. on March 22, 2012. Clay Espey, HRW's representative in this litigation, and the individual who undertook all of the day-to-day responsibilities of the cattle business, including this particular herd, conducted an inspection of the pasture and the surrounding fences the day following the storm but before the incident, March 23, 2012, but did not observe any damage caused by the storm; specifically, he inspected the perimeters of the entire enclosure and saw no fallen trees or other damage to any of the fences.

By approximately 8:15 a.m. on March 24, 2012, a cow from the herd had gotten through a damaged fence, onto the public road and, ultimately, into Kasem's front yard. Kasem heard noises coming from her yard, including people, trucks, horses, and four-wheelers, and went outside to see what was happening. She observed what she later alleged to be a "circus" in her front yard, consisting of numerous people and public officials involved in trying to corral and capture a cow, which was running erratically on the road, was visibly panicked, and exhibiting out-of-control, dangerous behavior. During the commotion, the cow entered Kasem's front yard, rapidly approached and "ran over" Kasem, as she stood in her front yard, "knocking Kasem into a truck bed," and injuring her.

212 So.3d 10

PROCEDURAL HISTORY

On February 28, 2013, Kasem filed a petition for damages, alleging that Williams and HRW are the co-owners, occupants, or possessors of the fence and enclosed pasture, as well as the herd from which the cow escaped. Kasem claimed that defendants breached the duty owed to her, pursuant to La. C.C. art. 2321, to restrain the cattle and prevent them from entering properties outside of the pasture and causing damage or injury. Among the acts constituting a breach of that duty, Kasem alleged defendants failed to construct and maintain a fence properly to restrain the cattle and prevent them from leaving the confined area; they failed to notify neighboring property owners that a cow had escaped the confined area; and, they negligently startled and provoked the cow "into frenzy" while attempting to retrieve it, causing the cow to charge and injure Kasem.

Kasem claimed that being "run over" by the cow resulted in severe injuries to her, including multiple myalgia, acute cervicalgia, vertigo, left great toe sprain, lumbago, bilateral right knee arthralgia, right nasal injury, right eye trauma, and soft tissue damages to her back and neck. Kasem claimed these injuries caused her physical and mental pain and suffering, and forced her to undergo extensive medical treatment. Kasem finally alleged that during treatment for her injuries, she was unable to work and ultimately had to resign from her job, which caused her also to suffer lost wages and loss of earning capacity.

Discovery ensued, and on June 23, 2015, defendants and State Farm filed a motion for summary judgment. In the supporting memorandum, defendants admit ownership of the cow, which they identified as "Miss Maggie," and also admit that the cow escaped the enclosed pasture during the early morning hours of March 24, 2012. However, defendants deny that the cow ever struck or injured Kasem. Additionally, and in the alternative, they claim that Kasem lacks evidence to prove the defendants failed to exercise reasonable care. They claim the cow's escape was due entirely to a fortuitous event over which they had no control and could not be held liable. Defendants further claim that several persons involved in the rescue efforts to corral the cow advised Kasem to go back inside of her house and out of harm's way, but she refused to do so; instead she chose to stay outside and film the incident, all the while impeding the rescue by protesting their presence in her yard.

Defendants further asserted that HRW is a family business that has engaged in the raising and showing of Brahman cattle for many, many years. The company is more of a hobby for the family than a business operation; it does not have employees, does not make a profit, and generally "breaks even." Following the death of the founding member, HRW has been run by his widow (defendant, Joyce Williams), his daughter (Kandice Willard, who is an officer of HRW), and his grandson, Clay Espey. Espey, as earlier stated, is the person in charge of all the day-to-day responsibilities of raising and breeding registered Brahman cattle, with the minor exception of letting the show calves out of their stalls in the morning, and the filing of taxes, two specific tasks that his mother and grandmother perform. At the time of the incident, HRW was leasing the nineteen (19) acres on which some of the cattle were kept, and in March 2012, there were approximately fifteen to twenty (15–20) Brahman cows in HRW's herd.

Espey testified that prior to this incident, there had never been any claims filed against HRW, and no other incidents, involving cattle escapes, property damages, or injuries sustained thereby, had ever

212 So.3d 11

occurred in the entire history of the business. Espey did admit that during the winter of 2011–2012, "a time or two" cows had escaped the pasture, following which HRW discovered its fence had been intentionally cut by persons illegally hunting on the property. However, despite those isolated incidents of escape, there were no property damages or injuries caused as a result of those incidents. HRW asserted that the claim filed by Kasem is the sole incident concerning HRW's cattle operations that has occurred and resulted in litigation. Finally, defendants contended there are no genuine issues of material fact and, because Kasem would be unable to establish liability on their parts, they are entitled to summary judgment as a matter of law.

The district court held a hearing on the motion for summary judgment on September 1, 2015, and thereafter, on September 22, 2015, signed a judgment granting the summary judgment in favor of the defendants and dismissing Kasem's claims against them. Kasem appeals that judgment.

APPLICABLE LAW

Louisiana Civil Code Article 2321 governs damage caused by animals and provides:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal's behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person's provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The statute was amended by 1996 La. Acts, 1^st Ex. Sess. No. 1, § 1, effective April 16, 1996, to abolish strict liability for owners of all animals (except dogs), and instead, liability is now subject to standards of ordinary negligence. The primary difference is that prior to the amendment, strict liability could be imposed without requiring the plaintiff to prove actual or constructive knowledge of the animal's dangerous propensities. See Pepper v. Triplet , 2003–0619 (La. 1/21/04), 864 So.2d 181, 194. In order for liability in negligence to attach under our traditional duty/risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard...