Lollar v. Poe

• Decision Date: 18 June 1993
• Citation: 622 So.2d 902
• Court: Alabama Supreme Court
• Parties: Gwendola Winters LOLLAR and Jon Lollar v. Eddie E. POE and Sheila Poe. 1911962.

Page 902

622 So.2d 902

Gwendola Winters LOLLAR and Jon Lollar v. Eddie E. POE and Sheila Poe.

1911962.

Supreme Court of Alabama.

June 18, 1993.

George A. Nassaney, Jr., Tuscaloosa, for appellants.

Clark Summerford and Beverly A. Smith of Zeanah, Hust, Summerford & Davis, Tuscaloosa, for appellees.

HORNSBY, Chief Justice.

Gwendola Winters Lollar was injured when her motor vehicle collided with a horse on a state highway in Tuscaloosa County, at 9:45 p.m. on June 13, 1990. Lollar and her son, Jon Lollar, the owner of the vehicle, sued the owners of the horse, Eddie E. Poe and Sheila Poe, alleging that the Poes had negligently, willfully, and wantonly allowed the animal to run at large upon the highway and had thereby caused the collision that resulted in Ms. Lollar's injuries. The trial court initially entered a summary judgment for the Poes, but later set aside that judgment. After a second hearing on the defendant's summary judgment motion, the court again entered a summary judgment for the Poes. The Lollars appeal.

The Lollars argue that they presented substantial evidence creating a genuine issue of material fact as to whether the Poes negligently permitted their horse to run at large on the state highway. In response to the Poes' motion for summary judgment, the Lollars presented an affidavit by a neighbor of the Poes, who stated that she had seen some of the Poes' horses out of the pasture on two prior occasions when the horses had wandered over to neighboring yards, including her own. On one of the occasions, the neighbor said she telephoned the Poes' daughter to have her retrieve a horse that had wandered into her yard and then watched her lead the animal back to the Poes' pasture. The Lollars argue that this evidence is sufficient to withstand a summary judgment motion.

"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), A.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

Generally speaking, the owner of an animal would not be liable for damages caused by a collision with a motor vehicle, unless the owner "knowingly or willfully put or placed" the animal on the public highway, road, or street where the injury occurred. Ala.Code 1975, § 3-5-3(a). In light of the manifest danger to travelers of permitting domestic animals to roam at will on the highways, many jurisdictions have adopted statutes or ordinances prohibiting their owners from allowing such animals to roam unattended. Annot., Liability of Owner of Animal for Damage to Motor Vehicle or Injury to Persons Riding Therein Resulting from Collision with Domestic Animal at Large in Street or Highway, 29 A.L.R.4th 431 (1984 & Supp.1992). See also Kenney v. Antonetti, 211 Cal. 336, 295 P. 341 (1931) (acknowledging the policy reasons for such legislation, holding that "in these days of rapid automobile transportation, the extreme hazard to drivers and passengers of animals straying unattended on roads, particularly at night, cannot be overestimated," and stating, "In such situations, the driver is placed in a nearly helpless position because an animal springs out of the darkness in front of a car when blinded or hypnotized by its headlights.").

Ala.Code 1975, § 3-5-14(a), allows municipalities to regulate livestock. The City of Tuscaloosa has enacted an ordinance providing as follows:

"(a) it shall be unlawful for any person having charge, custody or control of any livestock, rabbit or fowl to permit such animal or fowl to run at large, or to fail to prevent such animal or fowl from running at large, in the city or in that area of the police jurisdiction extending within one thousand (1,000) feet of its corporate limits."

Code of the City of Tuscaloosa, Alabama 1983, § 4-20(a). This Court has held that a municipality may regulate livestock to the limit of its police jurisdiction. Wilkins v. Johnson, 595 So.2d 466 (Ala.1992). The parties admit that the accident occurred within the police jurisdiction of the City of Tuscaloosa and that § 4-20(a) applies to this case.

The Tuscaloosa ordinance imposes a duty, the breach of which is punishable by a criminal penalty, on those "having charge, custody or control" of livestock within the police jurisdiction of the City of Tuscaloosa to prevent their livestock from running at large. It authorizes the City of Tuscaloosa to charge those "having charge, custody or control" of livestock who permit or fail to prevent their livestock from running at large with violating § 4-20(a), and to impound the livestock and impose a monetary fine. Although the City of Tuscaloosa has not brought criminal charges against the Poes, this is not a bar to the Lollars' claim against the Poes for civil liability. This Court recently reaffirmed the general rule that for every criminal violation that injures the person or property of another, there is a concomitant civil remedy. See Smitherman v. McCafferty, 622 So.2d 322 (Ala.1993). In Smitherman, this Court reiterated the basis for such a civil remedy:

" 'Even though an act may constitute a crime, if it also results in injury to the person or property of another, the act may still be the basis of a civil action for damages. However, civil liability will ensue only if the acts complained of violate a legal right of the plaintiff, constitute a breach of duty owed to the plaintiff, or constitute some cause of action for which relief may be granted.' "

622 So.2d at 325 (quoting Martinson v. Cagle, 454 So.2d 1383, 1385 (Ala.1984)).

Applying this rule, we note that § 4-20(a) imposes a duty on those "having charge, custody or control of any livestock, rabbit or fowl" to take reasonable steps to prevent their animal from running at large within the police jurisdiction of the City of Tuscaloosa. The Lollars sought to impose civil liability against the Poes, alleging that they had negligently failed to prevent their horse from running at large, in violation of § 4-20(a), and that their negligence had caused the Lollars' injuries or loss. Accordingly, under the rule set out in Martinson and Smitherman, the Lollars may proceed against the Poes on a theory of negligence.

This Court has previously held, in an action against the owner of a bull, that the owner "must have been shown to be negligent in transporting his bull, or negligent in permitting him to escape" for the party injured by the bull to recover. Clark v. Moore, 341 So.2d 116, 118 (Ala.1976) (construing a statute making it unlawful for an owner of livestock "to knowingly, voluntarily negligently, or wilfully permit ... livestock ... to go at large ... either upon the premises of another or upon ... streets in ... Alabama"). A majority of other courts have also construed legislation making it unlawful to "permit," "allow," or knowingly or willfully put or place the animals at large on the highway, to require proof that, at a minimum, the owner was negligent with respect to the care and custody of his domestic animal in an action against the owner for damage to a motor vehicle or an injury to a person riding therein resulting from a collision between the animal at large in the street or highway and the vehicle. Bilderback v. United States, 558 F.Supp. 903 (D.Or.1982) (applying federal and Oregon law, recognizing rule requiring proof of negligence); Cosby v. Oliver, 265 Ark. 156, 577 S.W.2d 399 (1979); Carrow Co. v. Lusby, 167 Ariz. 18, 804 P.2d 747 (1990); Hammerlund v. Troiano, 146 Conn. 470, 152 A.2d 314 (1959); Selby v. Bullock, 287 So.2d 18 (Fla.1973) (recognizing rule); Porier v. Spivey, 97 Ga.App. 209, 102 S.E.2d 706 (1958); Abadie v. Royer, 215 Ill.App.3d 444, 158 Ill.Dec. 913, 574 N.E.2d 1306 (1991); Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943 (1973); Sparks v. Doe, 379 S.W.2d 252 (Ky.1964); Liner v. McEnery, 176 So.2d 786 (La.App.1965); Peterson v. Pawelk, 263 N.W.2d 634 (Minn.1978); Hughes v. W & S Constr. Co., 196 So.2d 339 (Miss.1967) (recognizing rule); Beshore v. Gretzinger, 641 S.W.2d 858 (Mo.App.1982); Ambrogini v. Todd, 197 Mont. 111, 642 P.2d 1013 (1982); Jensen v. Nielson, 91 Nev. 412, 537 P.2d 321 (1975); Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711 (1953); Burnett v. Rice, 39 Ohio St.3d 44, 529 N.E.2d 203 (1988); Kathren v. Olenik, 46 Or.App. 713, 613 P.2d 69, 75 (1980); Watzig v. Tobin, 292 Or. 645, 642 P.2d 651 (1982); Reed v. Clark, 277 S.C. 310, 286 S.E.2d 384 (1982); Higgins v. Vinson, 549 S.W.2d 161 (Tenn.App.1976); Beck v. Sheppard, 566 S.W.2d 569 (Tex.1978); Rhiness v. Dansie, 24 Utah 2d 375, 472 P.2d 428 (1970); Rice v. Turner, 191 Va. 601, 62 S.E.2d 24 (1950); Dawson v. Woodson, 180 W.Va. 307, 376 S.E.2d 321 (1988); Hinkle v. Siltamaki, 361 P.2d 37 (Wyo.1961).

The rules regarding negligence in such situations are the same as in ordinary negligence cases. See Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10, 11 (1940). To recover on the basis of negligence, the Lollars must establish that the defendants owed a duty of care...