The First Court of Appeals in Houston recently issued an interesting opinion in Arraby Properties, LLC, v. Brown, a case where a driver collided with a cow on a state highway.  [Read Opinion here.]  The case highlights several important points related to fence law and also includes a dissenting opinion that is likely concerning to both landowners and livestock owners alike.

Photo by Agustín Lautaro on Unsplash

Background

Paul Brown was driving home from work when he hit a cow on State Highway 225 in Harris County, Texas.  He was diagnosed with mild cognitive impairment as a result of the collision.

Eugene and Mary Alice Ybarra, an elderly couple, lived on a 5.8 acre tract of land a few miles from the highway.  They purchased the land in 1973 and for at least 5 years prior to the accident they lived on the property and kept a “pet cow.”  In 2016, the Ybarras deeded ownership of the property to Arraby Properties, LLC, a company owned by two of Mr. and Mrs. Ybarra’s children, Victor and Troy.   Mr. and Mrs. Ybarra continued to live on the land. Two days before the accident, a cow was reported missing from the property, and the cow was never recovered.

Lawsuit

Mr. Brown initially sued Mr. Ybarra for negligence and gross negligence claiming that he knowingly permitted his cow to run at large on the State Highway.  He sought damages for personal injury, property damage, and exemplary damages.  Mr. Brown amended his lawsuit to add Mrs. Ybarra, Arraby Properties, LLC, Victor, and Troy as defendants.  Mr. Brown dismissed his claims against Mr. Ybarra when he passed away and dismissed his claims against Mrs. Ybarra who suffered from late-stage Alzheimer’s disease.

Trial 

The court held a two-day bench trial.

Victor testified that the property had a home and a pasture, which were enclosed by two fences where the Ybarras kept their pet cow.  There was no written agreement between Arraby Properties and the Ybarras related to their living on the land or having the cow. He testified that Mr. Ybarra had workers who maintained the fences around the property.  Arraby had no records related to fence maintenance.

Alice Chandler, the Ybarras’ daughter, testified that her parents were not in physical shape to take care of a cow or to mend fences.  She said her brothers were aware of this. Mrs. Ybarra also admitted her inability to care for the fences in her discovery responses.

Bob Kingsbery, a livestock fencing expert, offered testimony that he believed the cow must have escaped from the property.  He also testified that since the property was owned by Arraby and Mrs. Ybarra said she did not own a cow, it was his opinion that the cow was owned by the owners of the property, and Arraby was responsible to care for the animal. He also concluded that Troy and Victor acted “knowingly” in letting the cow roam on the highway because they knew their parents were not physically able to care of the cow or keep up the fences. When asked what evidence he relied upon to say the fences were not properly maintained, he said the testimony that the Ybarras were not physically able to do so.  He did not visit the property.

Troy submitted an affidavit stating that his parents kept two or three cows on the property prior to deeding it to Arraby in 2016. He said that his parents continued to maintain the fencing and the animals even after ownership of the property was transferred.

The trial court held the Arraby was responsible for the control of the cow that Mr. Brown struck on the highway and that Arraby knowingly permitted the cow to roam at large on the highway. The court awarded $3.1 million in damages to Brown for physical pain and suffering, mental anguish, and loss of earning capacity.  The court found that Victor and Troy were not personally liable.

Arraby filed an appeal.

Appellate Court Opinion

The First Court of Appeals in Houston reversed.  [Read Opinion here.]

The court began with a discussion of the applicable fence law.  There is no common law duty for Texas animal owners to prevent their animals from running at large.  Instead, Texas is an open range state.  There are, however, two statutory duties to restrain livestock.  The first is under Texas Agriculture Code Section 143.102, which says that a person may not “knowingly permit” an animal to roam at large on a state or US highway.  Liability is imposed if a person (1) owns or has responsibility for the control of an animal and (2) knowingly permits the animal to run at large on a state or US highway.  The second is found in Texas Agriculture Code Section 143.074, which allows counties to hold elections to enact a local stock law that will prohibit owners from permitting animals to run at large in the county.  In situations, such as this case, where both statutory standards could apply, the Texas Supreme Court made clear it is the higher “knowingly permit” standard under Section 143.102 that a plaintiff must prove in order to recover.  [To read more about Texas Fence law, check out our handbook here.]

Arraby raised five issues on appeal.  The court sided with Arraby on the first two and did not reach the remaining three issues.

Duty

Arraby claimed that there was insufficient evidence for the trial court to hold it had responsibility or control over the cow or that it knowingly permitted the cow to run at large.

Ownership or Control

The trial court concluded that Arraby controlled the cow involved in the accident. Arraby argues it relinquished control over the property to Mr. and Mrs. Ybarra. As a mere landowner, Arraby argued it had no duty to Mr. Brown. That duty lay with the Ybarras as the owner of the cow.  Arraby relied on Levesque v. Wilkens, 57 S.W.3d 499 (Tex. App. – Houston [14th Dist.] 2001) where the court held that under a lease agreement, all obligation related to the cattle was on the tenant cattle owner, not the landowner.  Brown tried to distinguish the facts in this case from Levensque arguing that there was no formal lease agreement or landlord-tenant relationship.

The court did not find Levesque instructive.  While it is true that a lease agreement can be evidence to show who had exclusive possession of property and control of livestock thereon,  it is not the only evidence relevant to this inquiry. Thus, a formal lease relationship is not required in order to prove control of livestock under Section 143.102.

Looking at the testimony, the court relied on Victor’s testimony that all his parents did was deed the land over, but nothing else changed.  They kept control of the property, they continued paying the property taxes, they continued to be in exclusive possession of the property. There was no evidence that Victor or Troy had any right to enter the property beyond visiting their parents in the capacity as a family member.  There was no evidence that Mr. Ybarra failed to maintain the fences on the property.  Victor testified that workers did this type of maintenance for Mr. Ybarra. There was simply no evidence, other than the  unsupported conclusion of Mr. Kingsbery, that Arraby was responsible for the cow.  Thus, Arraby owed no duty to Mr. Brown under Section 143.102.

Knowingly Permit

Even had Arraby been responsible to control the cow, the court found there to be insufficient evidence to show that Arraby “knowingly permitted” the cow to run at large as required for a plaintiff to succeed under Section 143.102.

Mr. Brown claimed Arraby knowingly permitted the cow to run at large because (1) it admitted the cow got out of the pasture; (2) it did not have a planned response if the cow escaped from the property; and (3) Arraby never talked to the police department about the escaped cow.  Further, Kingsbery testified that a fence needs to be checked, inspected, and maintained on a regular basis and the cow needs to be fed, watered, and gates need to be checked.  Because Mr. and Mrs. Ybarra were not physically capable of doing this, he concluded that Victor and Troy knew the cow could get out of the pasture.

The court did not agree.  “Even if true, this evidence does not establish liability under the applicable statute.  Section 143.102 does not impose a duty to prevent all escapes of fenced animals.”  Rather, it provides a heightened standard of care, that an owner may not “knowingly permit” the animal to run at large.   “The mere fact that an animal escapes and makes its way onto a highway does not support a finding of culpability.” Further, mere knowledge that an animal may have escaped from a pasture is insufficient to satisfy the “knowingly permit” standard.

The court said that the focus was not on what Mr. and Mrs. Ybarra were capable of doing, as Kingsbery focused upon, but instead on what Arraby did or failed to do in knowingly permitting the cow to roam on the highway. There was no evidence that the fence was not maintained or that the fence was in disrepair at the time of the accident.  In fact, neither Kingsbery nor the investigating officers ever inspected the property or the fence.  Thus, the court held there was no more than a scintilla of evidence supporting Arraby’s alleged knowing conduct, and it reversed the trial court’s verdict that Arraby knowingly permitted the cow to run at large.

Dissent

Justice Goodman authored a dissenting opinion in this case.  [Read dissent here.]

Ownership/Control

Justice Goodman stated that “when there is a complete absence of evidence establishing an owner or other person responsible for a livestock animal, I believe the owner of the property who knowingly allows the animal to stay on the property is liable.”

Arraby allowed the cow to stay on its property and did not relinquish control of the animal to anyone else. There was no evidence that Mr. and Mrs. Ybarra were able to care for the animal or manage the property.  Thus, there was sufficient evidence that Arraby, as the property owner, was responsible for the control of the property and the cow kept on it. Other than generally saying his father’s workers took care of the fence maintenance, Victor offered no names of people he had interacted with or seen working on the fences.

Justice Goodman also relied upon Levesque.  He said that without conclusive proof of responsibility with a lease agreement, rental payments, or anything else suggesting a landlord-tenant relationship like that in Levesque, responsibility for the control of the animal was for the factfinder to decide, and the trial court found Arraby had control of the cow.  He also noted that if a landlord-tenant relationship were present, the landowner could still be liable if they retained control over the premises, as he believes Arraby did here.

Knowingly Permit

Justice Goodman stated that “Arraby knowingly permitted the cow to roam at large because it made no effort to keep the cow fenced in.”  He read Section 143.102 to impose a duty not to permit livestock to run at large, but also a corollary duty to properly fence those animals in.  He says that “circumstantial evidence” here allows the finding that Arraby acted knowingly.  Arraby did not inspect or maintain the fences controlling the cow.  Kingsbery testified that the entire length of fence should be checked “more than once a week.”  Arraby knew the Ybarras could not physically do this inspection or repair.  Victor testified he did not know anything about cattle or fences, and he did not do such inspections or repairs.

Justice Goodman further held that there was undisputed evidence that the cow escaped from the property.  He says that “this circumstantial evidence permits the inference that the cow escaped through a broken fence.  Unlike other livestock animals like horses, cows cannot simply jump over fences.  Thus, a cow can only escape a fenced area through a broken fence, so if the cow on the Arraby property escaped, it must have been through a broken fence.”

Justice Goodman said Arraby showed “conscious indifference” to its responsibility to keep the cow fenced in and, thus, should be liable to Mr. Brown. He would affirm the trial court’s judgment.

What happens next?

Mr. Brown recently filed a request for rehearing en banc, meaning he requested the entire panel of First Court of Appeals judges hear the case.  Depending on the outcome of that motion, the case could eventually be appealed to the Texas Supreme Court.

Key Takeaways 

First, this case is just a good overview of Texas fence law.  It walks through many of the issues we teach in our fence law classes, our fence law handbook, and on our fence law podcast episode.

Second, it is also a good reminder for anyone involved in a lease agreement involving livestock that this type of issue can arise. As noted here, typically, a landowner is not liable for damage or injuries that occur during a lease agreement.  There can be exceptions if, for example, a landowner agreed to repair or maintain fences on the property during the lease. It is important to spell out the parties’ specific expectations and agreements in the written lease document.  Further, it is also important to note that, as here, even if a landowner may eventually be found not liable, that does not mean the landowner could not be named as a party to a lawsuit, requiring legal fees to handle.  This is why having liability insurance is critical for both the landowner and tenant, as this insurance requires the insurance company to defend the insured.

Third, the dissenting opinion is concerning for landowners and livestock owners alike for a couple of reasons.  First, Justice Goodman’s opinion that if there is no express evidence that a  landowner has relinquished control to another, the landowner is liable for damages caused by the animal would be a significant change in Texas law.  Second, his analysis involving an inference that cows can only escape a pasture if a fence is broken could create an inaccurate and dangerous approach to analyzing fence law cases.  Animal owners and industry experts would likely disagree with Justice Goodman’s conclusion that the only way a cow could escape is through a broken fence.  For example, cattle can jump fences, contrary to Justice Goodman’s statement otherwise.