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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!

   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
   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
   Exceptions: oral agreements where there is partial
    performance, and oral contracts with complete
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
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
    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
   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
   Negligence in restraining a dog
   Deliberate inducement of a dog to attack or bite
    Hamby v. Haskins, S. Ct. of Ark.,

   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!
   Holding: Affirmed.
   When investigating, the dog had to be maced by
    police, and a prior owner had kept the dog in a
   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:

   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.

   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.
   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
Duren v. Kunkel, S. Ct. of Mo. 1981 -- viscious
animals, livestock

        Action?
        For injury by a vicious bull
        Facts:

   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.

   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
   A jury found them each 50% at fault with $200,000 told
    damages, leaving a recovery of $100,000 for the pl.

   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.


   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.

   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
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
   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
    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.
     Action?
      For damages by an escaped animal.
     Issue?
     If there is no fault with the fence, is the
      escaped animal owner strictly liable?
     Facts:
   Facts: Pl and def were adjoining landowners.
   They maintained the entire line fence between
   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.

   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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