Thomas v. Stenberg
| Decision Date | 15 August 2012 |
| Docket Number | No. A132431.,A132431. |
| Court | California Court of Appeals Court of Appeals |
| Parties | Nelson THOMAS, Plaintiff and Appellant, v. Erland L. STENBERG et al., Defendants and Respondents. |
OPINION TEXT STARTS HERE
Law Offices Of George B. Altenberg, Jr., George B. Altenberg, Jr., Esq., Cochran Erickson, P.C., Charles D. Cochran, Esq., Santa Rosa, for Plaintiff and Appellant.
Philip M. Andersen & Associates, Jeanette N. Little, Esq., for Defendants and Respondents.
Plaintiff Nelson Thomas appeals from the judgment of nonsuit after the trial court entered its order granting the motion of defendants Erland L. Stenberg, Maryann Stenberg, and E Lazy S Land and Livestock, Inc. (collectively referred to herein as defendants) for nonsuit. Plaintiff claims the court erred in concluding defendants did not have a legal duty to take measures to protect him from the harm that occurred when the motorcycle upon which he was riding collided with a cow on a private road passing through defendants' property. We affirm.
On January 19, 2010, plaintiff filed a complaint against the Stenbergs, alleging causes of action for general negligence and premises liability. 1Plaintiff alleged that on April 24, 2008, a cow charged him while his motorcycle was stopped on a paved road located within the E Lazy S Ranch in Petaluma. He sustained injuries as a result the impact. He claimed the accident was a proximate result of the defendants' negligent failure to warn him “of the inherently dangerous animal which was not contained in a fenced area.”
On February 28, 2011, an amendment to the complaint was filed adding E Lazy S Land and Livestock, Inc. as a defendant.
On March 30, 2010, defendants filed their answer to the complaint.
The trial in this matter commenced on April 15, 2011.
On May 4, 2011, at the close of plaintiff's evidence, the trial court filed its order granting defendants' motion for judgment on nonsuit. Judgment was entered in favor of defendants. This appeal followed.
I. Standard of Review
( Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1124–1125, 76 Cal.Rptr.3d 585, original italics.)
II. Plaintiff's CaseA. The Private Road
The road upon which the accident occurred is a one-mile-long private road that crosses pasture owned by defendants, as well as land owned by other parties. The road provides ingress and egress to a cluster of “landlocked” houses, including a house belonging to Jackly Bentley (plaintiff's aunt) and her husband. About eight family dwellings are serviced by the road, which is classified as an easement where it passes through defendants' property. The easement itself is owned by the Bentley family and the Dolcini family. The private road lies off Chileno Valley Road, which is a public road. There is a cattle guard that marks where the public road meets the private road.
The distance from Chileno Valley Road to the start of defendants' property along the private road is about a half-mile. The road initially crosses the pasture owned by the Dolcini family. Here, the road is comprised of dirt and gravel. The Dolcini's property is also used as cow pasture and there has never been a fence on either side of the private road. At this point, the surrounding land is mostly open pasture. As the road continues, it meets another cattle guard marking the entrance to defendants' property. The distance between this cattle guard and the Bentley's home is about a quarter-mile. The road through defendants' portion of the land is paved. As the road passes through defendants' property, trees become more prevalent.
B. Plaintiff's Testimony
Plaintiff was 46 years old at the time of trial and had been acquainted with the entire ranch land since the age of five. Alex Bentley is his uncle. The Bentleys own about 10 acres of land in this ranch property. Plaintiff has traveled down the private road thousands of times and had driven a motorcycle down the road at various times over the past 31 years.
On the date of the accident, plaintiff was riding his Triumph Tiger motorcycle on his way to visit the Bentleys at their home. Upon turning off Chileno Valley Road onto the private road, he maintained a speed of 10 to 15 miles per hour over the gravel and dirt portion of the road. The Dolcini's have posted a speed limit sign here of 12 miles per hour. Plaintiff testified that on the day of the accident he might have accelerated up to 25 to 30 miles per hour upon reaching the paved portion of the road that runs through defendants' land. Initially, he observed several cows about 100 yards in front of him standing off to his right. At some point, the road passes through an area having a barbed wire fence that goes down to a creek. There is also a telephone pole in the vicinity. Just past this point he saw a black cow off in the shadows about 30 yards to his left.
As he approached, plaintiff noticed the cow starting to move towards him. He began slowing down as she started running towards the road. He thought she was probably just going to try to run across the road. As he got closer, he saw that she was coming right at him and he applied his brakes. She put her head down and crashed into his gas tank and his shoulder. He was thrown over the handle bars and landed on his left shoulder. The bike was lifted in the air and dropped on its left side, after which it slid sideways down the road. The motorcycle was a total loss. Plaintiff suffered injury to his shoulder, which eventually required surgery.
C. Erland Stenberg
Erland Stenberg testified that his Petaluma ranch consists of approximately 450 acres. He breeds cows on the ranch and sells about 35 to 40 calves a year. Stenberg was born and grew up on a ranch in North Dakota. He lived on the ranch until he left home to go to college. His family raised Hereford cattle and farmed grain. His wife Maryann also grew up on a ranch. At the time of the accident, he had around 75 Angus cows and one bull. Most of the cows were ones he had raised from calves. He started his herd from nine cows that he bought in the fall of 1994. He and his wife operate the ranch themselves. Stenberg testified that Angus cattle are not considered to be the most aggressive breed of beef cattle.
The cow named “Annie” was born in 2003. Stenberg testified that his cows were gentle, such that his wife could walk up to almost any of them to pet them and give them apples. However, his wife did state in her deposition that she did not let her young grandchildren walk down the easement road unsupervised because cows can mistake small children for predators such as coyotes or dogs. Stenberg testified that there had never been an occasion where his cows had attacked anyone.
When cows are close to calving, the Stenbergs move them to the portion of the pasture that is bisected by the private road. At the time of the accident there were probably 20 to 25 cows that had been left to calve on that portion of the pasture. The Stenbergs had placed Annie in that area as she appeared to be about a week or two away from giving birth. Stenberg's wife would check the cows at least once a day to see if they had given birth or were just about to do so.
Stenberg testified that the Bentleys have rights to the private road where it runs through his ranch pursuant to an easement. The Bentleys are the dominant tenement of the easement. While the Stenbergs own the underlying property, they are the subservient tenement with respect to the easement, therefore, according to Stenberg, the Bentleys have as much obligation for maintenance of the road as he does. At one point, Stenberg did offer to allow the Bentleys to construct a fence along the easement provided they contributed money to do so. When he first acquired the property, the entire length of the easement road was dirt and gravel. Stenberg spent about $25,000 to widen the road, put in culverts, and build the grade for the portion of the road that passes through his property. Sometime later, Alex Bentley contributed $8,000 towards paving the road and another neighbor contributed $5,000. Stenberg paid the rest. The pasture that this private road goes through is fenced all the way around, including cattle guards placed at the entrance to the property. The cows will cross this road to get from one side to the other to graze.
On the 11th day after the accident,2 Stenberg and his wife were moving their cattle and trying to find Annie. That night, he had a heart attack and was hospitalized. While he was recuperating, his wife found Annie and noted that she had either lost or aborted her calf. His wife also noticed that Annie had a limp. Late in May 2008, he received telephone calls from plaintiff's insurance company telling him that an accident had occurred on Chileno Valley Road involving a vehicle and one of his cows. He informed the caller that he did not live on Chileno Valley Road and that all of his cattle were properly fenced in, a mile back off that road. He turned the matter over to his attorney and hired a private investigator.
D. Dr. Marc Horrell
Dr. Marc Horrell is a veterinarian who testified for plaintiff on the issue of the temperament and behavior of cattle. He testified that beef cattle tend to be...
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