Livestock and Liability Laws -- What You Need to Know

by Jill J. Dunkel

When cattle get out on the highway, it can be deadly - both for the livestock and the drivers on the road. But many law enforcement officers will tell you it happens fairly often, whether due to a bad storm that scares cattle through a fence, poor fences, or simply an open gate.
If it happens to you, what are your rights? Are you liable to fix the drivers' vehicles? Are the drivers responsible for paying for the cattle?

State livestock laws determine ownership liability. In the early days of our democracy, unregulated open range was common. Cattle were given the right-of-way. However, most states now regulate the liability of livestock owners in the event that their animals wander onto a public road and collide with a motor vehicle. (Most states consider livestock to mean cattle, horses, mules, donkeys, sheep and goats.)

These regulations can be found in the Livestock Laws of each state. Some states, like Texas, still have Open Range Laws. However, landowners are required to place fences along US and state highways. Texas landowners are not required to fence county and farm-to-market roadways, unless a county passes a provision requiring it.

For most states, the determination of liability centers around what is considered a "legal fence," according to the American Association of Horsemanship Safety (AAHS). "If a fence complies with the legal requirements, that protects the livestock owner from liability for damage done by a stray cow or horse," states the AAHS Web site (http://www.law.utexas. edu/dawson/).

In Texas, a legal fence must be at least four feet high. A board fence must consist of three boards not less than five inches wide and one inch thick, and a rail fence must consist of four rails. A barbed wire fence must consist of three wires on posts no more than 30 feet apart, with one or more stays between every two posts, and a picket fence must consist of pickets that are not more than six inches apart.

Kirk Crutcher is an attorney in Amarillo, Texas, who handles livestock law cases.

He says if a Texas livestock owner "exercises due care in fencing his cattle in," he can not be held liable if the horse gets out. "A reasonably prudent owner is typically not liable," Crutcher says.

Basically the livestock owner must be found negligent in order to be held liable. If the fence is in poor repair, the livestock has a history of getting out, or if the owner has been provided notice of a defect in the fence, he might be considered negligent. "'Was the act foreseeable and could you have prevented it?' is an important question in determining liability," says Crutcher, who is a partner at the law firm of Sprouse, Smith and Rowley, PC.

If the livestock owner is not liable, is the driver?

No. Although the livestock owner may not be liable, the liability is not transferred to the individual who hits the animal on the highway. Texas Livestock Laws state that a person whose vehicle strikes, kills, injures or damages an unattended animal running at large is not liable unless there is gross negligence in the operation of the vehicle, or there is a willful intent to strike, kill, injure or damage the animal.

Basically, it's a no-fault situation.

Although the law in most states is on the side of the livestock owner, it's a good idea to check into any existing insurance policies that you have in the event your liability is questioned. Farm liability policies may cover this type of claim.

Some policies pay for damage done to the livestock if the animals do not belong to the land or stable owner. This can protect the land owner if your pasture is leased out.

Preventing the problem all together is ideal. The best way to protect yourself from the situation is to inspect your fences, gates and locks regularly. "Make sure your livestock can't unlatch the gate," Crutcher suggests. "As any livestock owner will tell you, cattle always seem to find a way of getting out."

The AAHS Web site http:// www.law.utexas.edu/dawson/fence/fnc_menu.htm has links to the livestock laws in all 50 states. ©