Rozell v. Louisiana Animal Breeders Co-op., Inc.

• Decision Date: 20 October 1986
• Docket Number: No. 86-C-0769,86-C-0769
• Citation: 496 So.2d 275
• Parties: Edward R. ROZELL v. LOUISIANA ANIMAL BREEDERS COOPERATIVE, INC. et al.
• Court: Louisiana Supreme Court

Page 275

496 So.2d 275

Edward R. ROZELL v. LOUISIANA ANIMAL BREEDERS COOPERATIVE, INC. et al.

No. 86-C-0769.

Supreme Court of Louisiana.

Oct. 20, 1986.

Rehearing Denied Nov. 13, 1986.

R. Bruce Macmurdo, Steffes & Macmurdo, Baton Rouge, for applicant.

Henry Salassi, Jr., Salassi & Clark, James Moore, Franklin, Moore & Walsh, Mary Thompson, Watson, Blanche, Wilson & Posner, Baton Rouge, for respondents.

DIXON, Chief Justice ^*

Edward R. Rozell, an employee of the Louisiana State University Dairy Improvement Center, filed suit against Louisiana Animal Breeders Cooperative, Inc. and Atlantic Breeders Cooperative, Inc. seeking to recover damages suffered when he was attacked by a bull owned by defendants. ¹ L.S.U.'s worker compensation carrier, Continental Insurance Company, intervened seeking reimbursement of compensation benefits paid to plaintiff. Atlantic Breeders Cooperative, Inc. filed a third party demand against Louisiana State University, seeking indemnification if Atlantic was held liable. Defendants filed motions for summary judgment seeking dismissal on the grounds that the bull which injured Rozell, named Dixie Lee Fashion Designer, was not under the care, custody or control of the defendant owners at the time of injury. This court ruled that under C.C. 2321 defendants could be held responsible because ownership alone is the basis of liability, regardless of whether owners also had custody. Rozell v. Louisiana Animal Breeders Cooperative, Inc., 434 So.2d 404 (La.1983). After remand, the trial court found plaintiff contributorily negligent, and equated this to a finding of victim fault, thus barring his recovery. Accordingly, plaintiff's suit was dismissed, as well as Continental's third party intervention and Atlantic's third party demand. The court of appeal affirmed, but held plaintiff assumed the risk and also noted that the liability of the owner of a bull is strict rather than absolute because cattle, including bulls, belong to the class of domesticated animals having through long association with man become subject to man's use and control. Rozell v. Louisiana Animal Breeders Cooperative, Inc., 486 So.2d 968, 972 (La.App. 1st Cir.1986). Plaintiff applied for writs, arguing that the lower courts erred in finding him contributorily negligent or that he assumed the risk, and that because a bull is a noxious, inherently dangerous animal, owner liability under C.C. 2321 is absolute rather than strict.

FACTS

Dixie Lee Fashion Designer was housed at the L.S.U. Dairy Improvement Center for semen collection and distribution as part of the state's dairy sampling program to promote breeding. Dr. Arnold Baham is manager of Louisiana Animal Breeders Cooperative and also head of the Dairy Improvement Center. He testified in deposition that the artificial insemination done at the Dairy Improvement Center is for the benefit of farmers' livestock. Operations are financed primarily by the state legislature and services are provided at minimum expense. Income generated by the sale of the semen goes to the particular bull's owners.

Dixie Lee was housed in a barn which the trial court described in its findings of fact, which were adopted by the court of appeal. 486 So.2d 968, 969-70.

On the morning of the accident, Edward Rozell was working alone contrary to usual authorized procedure because the Dairy Improvement Center was short one employee. His job responsibilities included feeding the bulls and maintaining their housing. Rozell poured feed into Dixie Lee's trough and as the bull lowered his head to eat, Rozell noticed the gate to the pasture was jammed closed, thus preventing access to the outside. He was immediately concerned because bulls were in the habit of going out to pasture as soon as they finished eating, and Dixie Lee might butt the gate and injure his eye on the protruding gate latch if his access to the pasture was blocked. Rozell evaluated the situation. Knowing that bulls rarely allow anything to disturb them once engrossed in feeding, and seeing Dixie Lee's eye level was below the wall of the trough, Rozell began to take the three steps out of the "safe space" to the gate. The next thing he remembered was lying on the floor; the bull had evidently raised his head, backed out of the stall and around the pipes, turned around, approached and placed his forehead in the middle of Rozell's chest. The weight of the 2700 pound bull crushed his sternum, and corrective surgery was eventually required. After a few months Rozell resigned his job because he could not perform the required tasks due to the chest injury and pain.

Rozell was trained for his position through practical experience. There were no written rules or procedures, and Rozell testified that he understood that when there was a job to be done, he had to do it. The director of the dairy center testified that employees were not supposed to enter the pens while a bull was unrestrained and that bulls were not supposed to be worked by a lone employee. The testimony of two witnesses with regular experience working with bulls was that they had on occasion been required to enter a pen alone with an unrestrained bull in order to do their jobs.

BASIS FOR LIABILITY

Rozell sued, alleging liability under C.C. 2321 which provides in pertinent part that the "owner of an animal is answerable for the damage he has caused; ..." The correct interpretation of this article was outlined by this court in Holland v. Buckley, 305 So.2d 113, 119 (La.1974):

"... When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event." (Footnote omitted).

Holland is applicable to the case at bar because bulls belong to the class of domesticated animals, and because liability of the owner of such a domesticated animal is strict rather than absolute. Rozell v. Louisiana Animal Breeders Cooperative, Inc., 486 So.2d at 971-72. The Holland court also stated that the underlying reason for the owner's liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk creator should bear the loss. "He maintains the animal for his own use or pleasure." 305 So.2d at 119.

Under C.C. 2321 the animal's master has an obligation to keep his animal under such "garde" that it does no damage to others. This obligation continues even if the owner places his animal in the custody of another. In Holland the injuring animal was in custody of its owner, unlike the instant case. In Rozell this court found that there was no statutory basis for grafting the custodial requirement of C.C. 2317 onto C.C. 2321. C.C. 2321 would merely be repetitive of C.C. 2317 if custody was required for liability, and C.C. 2321 would be superfluous, contrary to the efficiency of the codal scheme. The owner who continues to be liable for damage caused by his animal might be entitled to indemnity from its actual custodian. Rozell v. Louisiana Animal Breeders Cooperative, Inc., 434 So.2d at 408.

Loescher v. Parr, 324 So.2d 441, 444 (La.1975) found liable the owner of a tree that fell because it "constituted an unreasonable hazard of injury to those upon whom it might foreseeably fall." The "likelihood and gravity of harm" of the escalator in Hunt v. City Stores, Inc., 387 So.2d 585, 589 (La.1980), rendered the escalator unreasonably dangerous to children wearing soft rubber soled shoes. The defective concrete back steps in Entrevia v. Hood, 427 So.2d 1146, 1150 (La.1983), might have an unreasonable risk of harm to a lawful occupant of the vacant, isolated house in the country, but not to the plaintiff, who was in contact with the step because of her "legally and morally reprehensible conduct."

Here, the 2700 pound bull was explosively dangerous, and constituted an unreasonable hazard of injury, even to the man hired to attend him.

DEFENSES

The court of appeal found that Rozell assumed the risk of injury when he "left a position of complete safety outside the pen and entered the pen where he was attacked." 486 So.2d at 972. Because plaintiff was aware of the unpredictable nature of bulls and aware of possible danger, yet chose to enter the pen alone on this occasion, the court of appeal concluded that he assumed the risk. "Assumption of risk" is a doctrine not well developed in Louisiana. We disagree with the interpretation of that doctrine by the court of appeal.

To assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm and must understand and appreciate the risk involved and accept it as well as the inherent possibility of danger because of the risk. Lytell v. Hushfield, 408 So.2d 1344 (La.1982). The opinion in Dorry v. Lafleur, 399 So.2d 559, 562 (La.1981) adopted the expression of assumption of the risk contained in the Restatement, Second, Torts, Section 496 D:

" 'Except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant's conduct unless he then knows of the existence of the risk and appreciates its unreasonable character.

Comment b explains:

The basis of assumption of risk is the plaintiff's consent to accept the risk and look out for himself. Therefore, he will not be found, in the absence of an express agreement which is clearly so to be construed, to assume any risk unless he has knowledge of its existence. This means that he must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character and extent which make it unreasonable. Thus the condition of premises upon which he may enter may be quite apparent...