Court of Appeals Holds That Livestock Owner Did Not Breach the Standard of Care When it Failed to Warn or Fence Land Adjacent to a Roadway Through an Open Range

The other day, Division One affirmed the trial court’s granting summary judgment to a livestock owner in connection with an accident occurring on a portion of unfenced “open range” land. The case, Brookover v. Roberts Enterprises, Inc., held that the plaintiff failed to show facts evidencing conduct below the applicable standard of “ordinary care.”

To get there the Court of Appeals seized upon the dicta in Carrow Co. v. Lusby, 167 Ariz. 18, 804 P.2d 747 (1990), which stated “[w]e believe that in open range territory, the mere failure to prevent one’s cattle from entering the highway, by erecting fences or otherwise, does not constitute conduct falling below the standard of care required of livestock owners.”

Though I am not exactly sure why, the Court entered into a lengthy discussion about “notice” insomuch as there was allegedly no notice that the cows would present a danger to motorists. Why does this matter? Notice is related to the existence if a duty and not whether there was conduct “falling below the standard of care.” Like Carrow, we already know that the livestock owner had a duty, the question was whether the livestock owner did or failed to do something that breached the duty.

Anyway, focusing on “notice,” the Court did not seem impressed with the facts that “Roberts was aware through its ranching experience that having an unfenced, paved, high-speed highway traversing grazing land would result in more collisions between automobiles and cows than would be the case where the road was dirt and unimproved.” They were equally unimpressed that “Roberts had complained to authorities on other occasions [about the danger] but took no such steps with regard to the [particular property].”

Then, even more strangely, the Court began focusing on comparative notice a/k/a comparative fault. The Court basically entered into a discussion about how Mr. Brookover knew about the potential for cows on the roadway. I actually laughed out loud when I read this line: “[Mr. Brookover] did not understand the term open range land but he did understand that signs with cows on them meant that cows may be present.” Was this meant to be insulting?

In any event, despite arguing that the livestock owner “fail[ed] to erect fencing at known crossing points, to post warning signs, or to advise authorities of the presence of cattle,” the Court of Appeals held that none of those issues required a jury determination of reasonableness. This, of course, is the heart of the matter and begs the question – what kinds of acts or omissions do breach the standard of ordinary care for livestock owners?

This is the problem with blindly adhering to the dicta in Carrow. Simply put, Carrow “cannot mean what it says” because it says in one breath that there is a duty, but in another breath says there is basically no way to breach that duty. That is, Carrow says “failure to prevent one’s cattle from entering the highway, by erecting fences or otherwise, does not constitute conduct falling below the standard of care.” Well then, to be blunt, what the hell does?

p.s. While it is grammatically acceptable, it drives me crazy when people add an extra “s” to words already ending in “s” (e.g., the court’s usage of the word “Roberts’s”)