Shively v. Dye Creek Cattle Co., C016355

Citation29 Cal.App.4th 1620,35 Cal.Rptr.2d 238
Decision Date09 November 1994
Docket NumberNo. C016355,C016355
CourtCalifornia Court of Appeals
PartiesHarold SHIVELY, et al., Plaintiffs and Appellants, v. DYE CREEK CATTLE COMPANY, Defendant and Respondent. Civ.

Paul D. Hoskins, Sacramento, and T. James Fisher, Redding, for plaintiffs and appellants.

Douglas H. Newlan and John C. Lyman, Redding, for defendant and respondent.

DAVIS, Associate Justice.

In this personal injury action, plaintiffs sued the defendant (Dye Creek) after their car struck one of Dye Creek's Black Angus bulls that was positioned on the roadway of State Highway 44 in Lassen County. The

collision occurred at night and pitted the plaintiffs' 1977 Toyota Corolla against a bull that weighed approximately 1200 to 1500 pounds. Finding that Dye Creek owed no duty to plaintiffs because plaintiffs had not set forth any basis to establish that duty, the trial court granted Dye Creek a summary judgment. We reverse.

BACKGROUND

The facts of the collision are undisputed. As described by plaintiffs, they are: "On June 19, 1988 at approximately 10:00 p.m. [plaintiff] Harold Shively was operating a 1977 Toyota Corolla eastbound on Highway 44 in Lassen County. His wife, [plaintiff] Betty [Shively], was a passenger in that vehicle. [Plaintiffs] had just traveled through a heavily forested area consisting of hilly terrain. The [plaintiffs'] vehicle was on a slight decline in a left to right curve. They entered a meadow which constitutes part of an area of land known as Hog Flat. Approximately 450 feet from the east end of the turn Mr. Shively struck a full grown black Angus bull. The bull was lying in the roadway in Mr. Shively's lane of travel with its back toward Mr. Shively." The bull was part of a herd that Dye Creek grazed during the summer on federally owned land pursuant to a grazing permit issued by the United States Forest Service.

Plaintiffs filed their complaint on June 9, 1989. They alleged that Dye Creek knew or reasonably should have known of the high accident rate involving cattle and automobiles in the area of plaintiffs' collision (Highway 44 at milepost 29); that Dye Creek owed a duty of care to motorists using Highway 44, which included "taking reasonably necessary steps to prevent creating an unreasonable risk of harm to the motoring public from cattle wandering onto and remaining on the public highway;" and that Dye Creek "negligently and carelessly managed and permitted cattle to present an extraordinary risk to motorists in and about the area of Milepost 29 and Highway 44 as a result of said cattle roaming onto and remaining on the public highway, particularly during night time hours."

Relying principally on Food and Agricultural Code sections 16904 and 17123, Dye Creek in September of 1989 brought the first of two motions for summary judgment basically contending it owed no duty to plaintiffs. (All references to sections are to the Food and Agricultural Code unless otherwise specified.) Section 16904 prohibits use of the res ipsa loquitur doctrine against cattle owners in civil actions arising from "cattle/car" collisions that occur on highways. (See Pepper v. Bishop (1961) 194 Cal.App.2d 731, 733-734, 15 Cal.Rptr. 346, and cases cited therein.) Section 17123 and related sections state that persons grazing cattle in counties "devoted chiefly to grazing," of which Lassen is one, are not required to "fence in" their cattle (these counties are also referred to as "open range" counties; see § 16801, subd. (b); for purposes of this opinion we will consider the terms "open range" and "devoted chiefly to grazing" to be synonymous). (See §§ 17122; 17123, subd. (c); Williams v. Goodwin (1974) 41 Cal.App.3d 496, 502-503, 116 Cal.Rptr. 200.) 1

The trial court denied Dye Creek's first motion for summary judgment, reasoning: "... § 17123 exclude[s] owners of livestock in certain areas from the duty to 'fence in'. It does not relieve them of the duty to exercise In March of 1993, Dye Creek "renewed [its] motion for summary judgment" because, "[d]espite extensive discovery and the passage of more than three years, no evidence to support a finding of negligence has been produced to date." As with its first motion for summary judgment, Dye Creek argued it owed no duty to plaintiffs. Dye Creek again relied on sections 16904 and 17123. And Dye Creek asserted that no duty arose from the mere fact that other accidents involving motorists and Dye Creek livestock may have occurred in the area of plaintiffs' collision, as plaintiffs could point to no wrongful conduct on Dye Creek's part from which a duty could be imposed such as driving cattle near a highway or leaving a gate open.

reasonable care in their management of their animals."

Dye Creek offered the following facts to support its request for summary judgment: (1) the accident occurred in an "open range" county on a state highway that crossed land owned by the federal government; (2) Dye Creek had a permit allowing it to graze cattle on this land; (3) Dye Creek did not fence or enclose the property for which it had the grazing permit; and (4) Dye Creek was not required to "fence in" the cattle it was grazing. 2

Plaintiffs opposed Dye Creek's second motion for summary judgment by noting that section 17123 does not immunize cattle owners from the general duty, set forth in Civil Code section 1714 and decisional law, to exercise reasonable care in the management of their cattle. Plaintiffs submitted the following items of evidence in opposition, among others: (1) copies of two identical letters that Dye Creek's president, William Keeler, had written in 1968 to his state senator and assembly member complaining about the unreasonable losses of cattle from hit and run drivers (in the area of plaintiffs' accident), and asking the state to consider fencing the area given the tremendous increase in traffic from the rapidly growing tourist and logging industries; (2) a form letter that Dye Creek sent to motorists involved in collisions with its cattle seeking reimbursement for the animal; (3) a declaration from a former Caltrans official noting there were 21 livestock-related accidents from 1983 through 1991 on the two-mile stretch of highway encompassing plaintiffs' accident site; (4) Dye Creek's answers to plaintiffs' interrogatories acknowledging there were 21 collisions involving Dye Creek cows and vehicles during the summers from June 1984 to June 1988 just before plaintiffs' collision, including one on the night before plaintiffs' collision; and 10 more such collisions in July of 1988 and July and August of 1989; (5) William Keeler's (Dye Creek's owner and president) deposition statement that all of the "cattle/car" collisions on Dye Creek grazing areas have involved Dye Creek cattle; and (6) deposition excerpts from George Marsters, the U.S. Forest Service range conservationist responsible for grazing administration in the area of plaintiffs' accident. Marsters, who had 32 years of experience at the time of his deposition, explained that cattle cross the road in the area of plaintiffs' accident (the Hog Flat area) because the "meadow there it's an ideal spot [for feed and water]. The road [goes] right through the heart of them meadows and that's where the cattle have always pulled to. It's a heck of a drawing card," and the road in this area "is not very high above the meadow."

Plaintiffs then concluded their opposition by noting that Dye Creek misperceived the question of duty as involving only the question of fencing. Dye Creek, said plaintiffs, had a "general duty of a cattle owner to reasonably control [its] cattle or those in [its] capacity as an occupier of land under Civil Code Section 1714." The question of what Dye Creek should have done, plaintiffs argued, "i.e., total or partial fencing, parallel stripes along the roadway, additional cowboys, herders, moving water sources, creating new water sources such as wells, moving food or salt, or even total removal of the herd to other areas, [were] to be left to the province of the jury on the issues of breach and causation."

In ruling on Dye Creek's second motion for summary judgment, the trial court noted that Dye Creek "seeks an adjudication that it did not have a 'duty' to Plaintiff[s] to keep the cow off the road." The trial court framed the issue as follows: "In essence, the issue presented is whether [Dye Creek], as a lessee of federal property in an 'open range' county, as designated in [section] 17123, has any duty to keep grazing cattle off of a state highway."

The trial court noted that plaintiffs have not "suggested how the claimed duty could be met except by fencing", and that plaintiffs "actually contend[ ] that the duty is to fence...." In granting the summary judgment, the trial court concluded: "Cattle on summer pasture wander, graze and roam and to hold, in the absence of other facts, that the statutory exemption from fencing does not apply because cattle are known to go upon a highway renders the 'open range' law meaningless."

Plaintiffs moved for reconsideration. In support of that motion, they submitted a declaration from Leslie Krysl, a livestock specialist with the University of Nevada at Reno. Krysl was familiar with cattle behavior and mitigation measures to control cattle movements. Krysl explained why the cattle were on the highway in the area of plaintiffs' accident (large open meadows with good forage and trees on one side of the road and good sources of water on the other; the meadows are colder at night and the highway is warmer, and the cattle are drawn to the warmth at night). Krysl then delineated several mitigation measures, aside from fencing, that would have been appropriate and effective; many of these aligned with the mitigation measures plaintiffs had suggested in their opposition to the second motion for summary judgment.

The trial court denied plaintiffs' motion for reconsideration, explaining that Krysl's...

To continue reading

Request your trial
24 cases
  • Larson-Murphy v. Steiner
    • United States
    • Montana Supreme Court
    • December 14, 2000
    ...does not constitute conduct falling below the standard of care required of livestock owners"); Shively v. Dye Creek Cattle Co. (1994), 29 Cal.App.4th 1620, 35 Cal.Rptr.2d 238, 244 (applying duty of ordinary care to livestock owners and stating that "against the backdrop of the `open range' ......
  • Herzberg v. County of Plumas
    • United States
    • California Court of Appeals Court of Appeals
    • October 3, 2005
    ...fence around their land. (Stats. 1850, ch. 49, p. 131; Waters v. Moss (1859) 12 Cal. 535, 538; Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1629, fn. 3, 35 Cal.Rptr.2d 238; Williams v. Goodwin (1974) 41 Cal.App.3d 496, 502-503, 116 Cal.Rptr. 200; Davis v. Blasingame (1919) 40......
  • Andersen v. Two Dot Ranch, Inc., 00-67.
    • United States
    • Wyoming Supreme Court
    • July 12, 2002
    ...livestock from wandering onto public highways in posted open range. [¶ 40] The plaintiffs also rely on Shively v. Dye Creek Cattle Co., 29 Cal.App.4th 1620, 35 Cal.Rptr.2d 238 (1994), Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965), and Carrow Company, 167 Ariz. 18, 804 P.2d 747, to demons......
  • Minnegren v. Nozar
    • United States
    • California Court of Appeals Court of Appeals
    • October 24, 2016
    ...duty of care is a question of law, breach of that duty and resulting damage are questions of fact. (Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627–1628, 35 Cal.Rptr.2d 238 (Shively ).)Authorities define the duty of care with varying language that is simply the same concept......
  • Request a trial to view additional results
1 books & journal articles
  • Animal torts
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...‘open range’ law the person trespassed upon is required to ‘fence out’ the livestock of others.” Shively v. Dye Creek Cattle Co. , 29 Cal. App. 4th 1620, 1629, 35 Cal. Rptr. 2d 238, 243 (1994). Livestock owners are not granted a blanket immunity from the duty of due care solely based on “op......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT