Reed v. Molnar

• Decision Date: 08 July 1981
• Docket Number: No. 80-1287,80-1287
• Parties: , 21 O.O.3d 48 REED et al., Appellants, v. MOLNAR et al., Appellees.
• Court: Ohio Supreme Court

Page 76

67 Ohio St.2d 76

423 N.E.2d 140, 21 O.O.3d 48

REED et al., Appellants, v. MOLNAR et al., Appellees.

No. 80-1287.

Supreme Court of Ohio.

July 8, 1981.

John Molnar, Jr. operates a sod business and farm on 100 acres owned and rented to him by his parents, defendants-appellees John Molnar, Sr. and Dorothy Molnar. The cattle involved in the collision, which were raised by the Molnars in connection with their children's 4-H activities, were kept in a barn located on the premises immediately adjacent to State Route 18. The cattle entered and exited the barn through a "Dutch door" approximately four feet wide, of which the top half and bottom half swung open independently. The bottom half of the door, which was approximately 48 inches high, was secured by a metal hook and eye. Additionally, a reinforcing 2 X 4 beam could be slid between two iron brackets attached to either side of the inside of the door frame at a height of approximately 40 inches. The beam's purpose was to prevent the cattle from exerting their weight against the lower half of the door itself, thereby weakening the hook and eye closure or breaking down the door. No fence or other barrier existed between the Dutch door, which exited into an area of lawn, and the highway.

John Molnar, Jr. testified that at approximately 11:00 the night of the accident he checked the cattle and the latch, and found everything to be secure. After the accident Molnar found the Dutch door open, and the metal eye of the closure broken off at the point where it screwed into the door frame. The reinforcing bar remained in place. Reed testified that the accident occurred while he was traveling his usual route as a milk hauler and carrying about 3,000 gallons of milk. The night was misty but the pavement was dry. He was traveling at approximately 45 miles per hour (in a 50 m. p. h. zone) when "all of a sudden these here cattle popped out" in front of him. Reed had no further recollection of the events surrounding the accident. On cross- examination, Reed testified that he had adjusted his headlights to direct their beam downward enabling him to more easily see potholes in the farm roads he traveled.

Reed and his wife, Barbara A. Reed, brought this action against both Molnar couples, alleging that the accident was a proximate result of the defendants' negligence in allowing the cattle on the highway. The plaintiffs further alleged that the defendants' conduct violated R.C. 951.02 and 951.10 constituting negligence per se. Similarly, the Buckeye Union Insurance Co. sued the Molnars (John Jr. and John Sr. only) in negligence as subrogee of Reed's property damage claims, having paid Reed the sum of $27,690 for damages to his truck.

The trial court overruled a motion of John Molnar, Jr. and his wife for directed verdict at the close of plaintiffs' case. The court granted a motion for directed verdict in favor of John Molnar, Sr. and Dorothy Molnar at the close of the plaintiffs' evidence and dismissed the actions against these defendants. The jury returned verdicts in favor of the remaining defendants, John Molnar, Jr. and Julia Molnar, and judgment was entered accordingly. The Court of Appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Critchfield, Critchfield, Critchfield & Johnston, Walter C. Grosjean and J. Douglas Drushal, Wooster, for appellants Reed.

Hargreaves & Fanelly, Angelo Fanelly and John Lambert, Akron, for appellant Buckeye Union.

Williams & Batchelder, Alice M. Batchelder

and William G. Batchelder, Jr., Medina, for appellees John Molnar, Sr. and Dorothy Molnar.

Weston, Hurd, Fallon, Paisley & Howley and James L. McCrystal, Jr., Cleveland, for appellees John Molnar, Jr. and Julia Molnar.

PER CURIAM.

Appellants contend that proof of the unsupervised presence of domestic animals, such as cattle, in a public highway results in the animals' owner or keeper being subject to strict liability in tort for damages resulting therefrom or, alternatively, constitutes negligence per se.

We reject appellants' contention that a strict liability theory is applicable to this cause. The syllabus of Nixon v. Harris (1968), 15 Ohio St.2d 105, 238 N.E.2d 785, upon which appellants base their argument, provides, as follows:

"If an animal breaks into the enclosed land of another, or gains entrance into such enclosure by jumping over the fence, and there damages real or personal property of the one in possession, or injures a member of his family, the owner of the trespassing animal is liable without reference to whether or not such animal was vicious and without reference to whether such propensity was known to its owner. * * * " (Emphasis added.)

The plaintiff in Nixon brought his action in trespass. The opinion in Nixon expressly distinguishes between cases based on a theory of negligence, where an animal owner's negligent conduct allegedly caused damage, and those tried as trespass actions, based on injuries resulting from an animal's entry upon another's property. However, appellants have not alleged that they held any possessory interest in State Route 18 where the collision occurred. In Prosser on Torts (4 Ed.) Section 76, at 498, it is stated that "(o)n the highway itself, even an escaped animal is not a trespasser, and there is no strict liability for any harm which it may do upon that basis." Nor was it alleged that appellees' cattle were inherently dangerous animals, likely to inflict serious damage. Cf.: Prosser, supra, at 499-500. Under these circumstances we see no reason to hold appellees to the standards of strict liability.

Nor do we find the doctrine of negligence per se to be applicable to this cause.

R.C. 951.02, as effective on the date of the accident, provided in part:

"A person, firm, or corporation which is the owner or has charge of horses, mules, cattle, sheep, goats, swine, dogs, or geese, shall not permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land.

" * * *

"The running at large of any such animal in or upon any of the places mentioned in this section is prima-facie evidence that it is running at large in violation of this section."

R.C. 951.09, as effective on the date of the accident, provided in part:

"It is a sufficient defense to such prosecution (for violation of 951.02) to show that the animal was at large without the knowledge or fault of its owner or keeper."

R.C. 951.10, as effective on the date of the accident, provided in part:

"The owner or keeper of an animal described in section 951.02 of the Revised Code, who permits it to run at large in violation of such section, is liable for all damages caused by such animal upon the premises of another without reference to the fence which may enclose such premises. * * * " (Emphasis added.)

"Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case." Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 119 N.E.2d 440, paragraph three of the syllabus. (Emphasis added.) Where a statute imposes a specific requirement or duty, the jury need only determine whether a prohibited act was committed or a required act was omitted, to find the violator of the statute negligent per se. "But where duties are undefined (in the statute), or defined only in abstract or general terms, leaving to the jury the ascertainment and determination of reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the phrase negligence per se has no application." Swoboda v. Brown (1935), 129 Ohio St. 512, 523, 196 N.E. 274.

Having applied the foregoing criteria to R.C. 951.02, we conclude that that statute does not impose a requirement of an absolute and specific nature justifying application of the doctrine of negligence per se. The statute prohibits the owner or keeper of certain domestic animals, including cattle, from "permitting" such animals to run at large on public highways. In Annotation, Owner's liability, under legislation forbidding domestic animals to run at large on highways, as dependent on negligence, 34 A.L.R.2d 1285, at 1289, it is stated:

"Where the particular statute involved provides that the owner shall not 'permit' * * * his animals to run at large, the courts have generally held, or recognized, that statutes of this type are not violated in the absence of at least negligence by the owner of the animals." (Emphasis added.)

That a violation of R.C. 951.02 requires, at a minimum, negligent conduct on the part of an owner or keeper is demonstrated by R.C. 951.09, where it is provided that it "is a sufficient defense to such prosecution to show that the animal was at large without the knowledge or fault of its owner or keeper." (Emphasis added.) ¹ It is true that one contending that a cattle owner violated R.C. 951.02 is given an evidentiary boost in that the statute provides that the running at large of cattle on a public highway constitutes "prima-facie evidence that it is running at large in violation of this section." Thus, an owner or keeper is under a burden of producing evidence that the presence of his animals upon the highway (that having been established by the plaintiff) was without his knowledge or fault. Nevertheless, in determining whether R.C. 951.02 was violated, the fact finder must weigh the "reasonableness and correctness" of the owner's "acts and conduct under the proven conditions and...