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Class 20 - October 4, 2002 Chap. 8 – Liability for Animals Hand in Homework #3 Have a nice break, work and travel safely! Recitation Cases Students Hamby, p. 193 – Andrew Eller& Nathan Fleck Stehl, p. 195 -- Chris Geswein & Luke Harrison Duren, p. 198 – Ryan Holtkamp & Gretchen Humphrey Kundel, p. 202 – Joshua Johnson & Kyle Kuehnert Lindsay, p. 204 – Chris Lindborg & Drew Mellon Quiz #7 1. Common law for injury by 4. An injured hunter, without a dog not known to have permission, in Indiana, vicious propensities in generally, is barred from Indiana maybe ―one free holding the landowner liable bite!‖ by the ―Recreational User’s‖ 2. ―Invitees” are afforded law if he or she has not paid more ―protection‖ on a a fee directly to the landowner’s premises than landowner. “licensees‖ when it comes to seeking damages from 5. The Recreational user the landowner. statute does not protect the 3. Once convicted, a burglar landowner from liability for is not allowed to sue the injury to a business landowner who set an invitee. injurious trap triggered during the burglary. Test 1 --Essay -3 points each for 9 Points 1. Statutes and of fraud and deals in real estate in writing. Answer: SF requires a ―signed writing‖ to cover land deals and other activities or agreements in order to prevent individuals from fabricating the truth after the agreement, after the fact. Writing is required because of the importance of the covered transactions. Exceptions: oral agreements where there is partial performance, and oral contracts with complete performance. Test 1 --Essay -3 points 2. Alternative types of ownership for an unmarried man and woman who co-own land with children. Answer: under the facts, the parties are tenants in common by an Indiana statute. The law ―fills in the presumption‖ or clears the confusion, if not married (H&W) they are TIC, if married they are Tenants by the Entirety. See the handout of owner characteristics. It is best to make clear which form of ownership is intended. Joint, TIC, ten by the ent. or life estate. Note three of the above are ―will substitutes.‖ Test 1 --Essay -3 points 3. In tort law, the matter of negligence is often raised. A husky,14 year old (Bill) is injured by a ―100 horse power‖ tractor tipping over on him while he was pulling a wagon down the highway. Bill claims serious, permanent injuries, and loss of athletic career (QB in junior high--already been ―noticed‖ by Joe Tiller). The 14 year old simply stopped by one Saturday looking for work, and was injured on the job. Draft a plaintiffs brief for negligence against the farm operator. Test 1 – answer question 3 Here you can list components of negligence: Duty Breach of duty Causation (foreseeability) Injury or damages ********** Youthful tractor operator—in violation of federal law. What safety measures when a farmer employs help? Questionnaire, work documents, references … Test 1 --Essay 4. Scope of Right to Farm law. Answer: Right to farm law(s) is a nuisance defense. Discuss the purpose (policy) of right to farm, and the conditions for a farmer to qualify for the protection, ―time farming,‖ ―no change in activity or hours,‖ not negligent, and not a nuisance when the farm or ag activity began. There are other things farmers can’t expect to put under the right to farm law: farming activities say with chemicals, general relations with the community. See ―land use‖ publication on city country clash. Legal principles for dog owner liability Common law for injury by a dog not known to have vicious propensities (Indiana) ―one free bite!‖ Liability under a statute Violations of leashing or other restraining requirements Negligence in restraining a dog Deliberate inducement of a dog to attack or bite another Hamby v. Haskins, S. Ct. of Ark., 1982 Action? Claim for injuries from a dog bite Issue? Did the dog have vicious tendencies or dangerous propensities of which the owner had or should of had knowledge of -- so as to bring liability at common law? Hamby v. Haskins Facts: Pl was looking for a garage sale when they stopped for directions in a rural area. Pl went to door noting a dog nearby, knocked, no one answered, turned to leave and was attacked by the dog. After a report of the incident, the police went to the dog owner’s residence and had to mace it to protect themselves. Pl filed suit for injuries from a vicious dog & was awarded $12,000! Hamby Holding: Affirmed. When investigating, the dog had to be maced by police, and a prior owner had kept the dog in a pen. There was sufficient circumstantial evidence that the owner knew or should have known of the dog’s vicious tendencies. Stehl v. Dose, App. Ct. of Ill. 1980 Action? For injuries due to a vicious dog Issue? Was there a provocation of the dog? Facts: Stehl Facts: pl made arrangements to obtain a dog for guard purposes at a construction site. When he went to get the dog he was feeding the dog and ―making friends‖ inside its chained area. The dog bit pl -- inflicting injury. The jury verdict was for the defendant. Stehl Law: An Illinois statute says ―if a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner … is liable in damages for … the injury sustained. Stehl Holding: Affirmed the lower court. Pl argues there was no provocation. But arguably it may have been provocation to get within the dog’s protected area reasonable men could differ and such a case is well suited for a jury to determine. Duren v. Kunkel, S. Ct. of Mo. 1981 -- viscious animals, livestock Action? For injury by a vicious bull Facts: Duren Facts: Def. Kunkel, acquired a bull which he told Duren that he got a little cheaper because he acted up in the sale ring. Over a year later Duren was helping defendant in a work exchange with the cattle. Duren was asked to move the limousin bull while they had been castrating young bulls. Duren Facts: Once Duren had driven the bull in the area of the blood from castration the bull turned on Duren and knocked him unconscious, and delivered substantial, and permanent injuries. A jury found them each 50% at fault with $200,000 told damages, leaving a recovery of $100,000 for the pl. Duren Issue: Did the pl and the def both have knowledge of the dangerous propensities of the limousin bull? Law: In Mo., one who harbors a domestic animal with dangerous propensities known to the owner may be liable even without a showing of negligence on the part of the owner. I.e., once there is knowledge, it is strict liability. Duren Holding: The court reasoned that strict liability would not apply for this bull since it was not shown that the bull was different from other bulls of its class. One with ordinary knowledge of bulls would have foreseen the bull’s attack behavior once the bull is exposed to the blood. Duren Holding: Pl sought on appeal to introduce a claim for ordinary negligence on the part of the def due to insufficient personnel to move the bull under the circumstances. A new trial was ordered on the issue of negligence. History and Alternative Fencing Laws--- Farm and Ranch ―Fencing in‖ statutes keep your livestock fenced in ―Fencing out‖ statutes If you want to keep livestock out-- build a fence. ―open range‖ law Common law Partition fence; right half is the landowner’s as he looks to neighbor’s direction. Fence Law in Indiana Indiana farm fence law : 1. Partition (line) fences outside city limits must be sufficient to ―turn‖ (hog tight) domestic livestock if the neighbor requests. 2. Partition fence: Right half is yours to build and/or maintain whether you have livestock or not (other agreements may be made). Fence Law in Indiana Township trustee, after proper notice to a reluctant landowner or tenant, will build the fence, and bill the landowner via the tax records. Farmstead fences are the responsibility of the landowner or tenant (―fencing in‖ rule) but, the landowner or tenant is not responsible for animals that enter from the roadway. Partition (line) fences outside city limits must be sufficient to ―turn‖ (hog tight) domestic livestock if the neighbor requests. Fence Law in Indiana Railroads are required to fence the entire right of way next to a landowner as long as the landowner has his the other sides fenced. If the railway does not respond after proper notice, the farmer may build the fence, and bill the railway for costs and attorney fees. Special rules exist for various situations. See EC-657 or the Indiana Code Liability for Animals Escaped animals a taker-up of an escaped animal may keep the animal(s) until compensated for damages and costs Absolute Liability for all injuries caused? A desirable public policy? But it is not the law in Indiana, but it is in some states. Liability for Animals Absolute Liability for all injuries caused? The modern Indiana cases, and elsewhere, indicate a landowner or tenant may not be liable for damage, such as an auto hitting a cow as long as the landowner or tenant can show his fence has been maintained, and not negligent in the escape and makes immediate attempts to retake the animals Liability for Escaped Animals An old Illinois case suggests that before a farmer can collect for damages if the animals came through a line fence. The injured farmer may be required to show that his half of the fence was not the ―escape way‖ for the animals. Kundel Farms v. Vir-JO Farms, Inc. Ct. of App. Iowa, 1991 Action? To build fence Issue? How much fence is a landowner required to build, and what constitutes a partition fence. Facts Kundel Farms Facts: Pl and def were adjoining landowners. They had a partition fence dispute. Fence viewers ruled that plaintiff should build 100 rods of fence and def was to build 116 rods. Def repaired all the fence including 50 rods pl argued was ―solely on its property,‖and not under the fence viewer’s jurisdiction. Trial court upheld the fence viewers’ ruling. Kundel Farms Holding: Reversed the trial court. Fence viewers were commanded to divide the responsibility according to Ch. 13 of the Iowa law. A partition fence is suppose to be on the property line. Kundel Farms Holding: The law requires adjoining landowners share in the maintenance of partition fences. However, 113.17 does not apply to fences wholly on one party’s property which have no relation with the boundaries of the adjoining properties. Lindsay v. Cobb, Ct. of App. Kan. 1981 Action? For damages by an escaped animal. Issue? If there is no fault with the fence, is the escaped animal owner strictly liable? Facts: Lindsay Facts: Pl and def were adjoining landowners. They maintained the entire line fence between them. Pl seeks damages to his bull caused by Def’s escaped bull. They found no escape holes in their fence. Trial court held that the def was strictly liable for damages from a trespass animal on property of one protected by a legal fence. Lindsay Holding: Upheld the trial court. At common law an animal owner is held strictly liable for all damages of an escaped animal. In this case, where there is injury to a party surrounded by a lawful fence, the escaped animal owner is liable.
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