Jewett v. Miller
263 P.3d 188
Kan. Ct. App.2011Background
- Jewett and Caffey were injured when a horse escaped Miller's farm and struck a car on Highway K-7.
- Plaintiffs sued Miller for negligent maintenance and inspection of the fence.
- Trial court granted summary judgment for Miller.
- Miller's fence enclosure 4 (facing the highway) housed horses and was partially eroded due to water runoff and pipeline changes.
- Miller testified he visually inspected the fence every 2–3 days and that all posts except two loose T-posts were secure.
- Res ipsa loquitur not applicable to livestock-escape cases; post-accident repairs were governed by K.S.A. 60-451.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Miller breach a duty by failing to maintain the fence to confine horses? | Jewett/Caffey contend erosion and lack of inspection breached duty | Miller argues visual inspection suffices and no breach shown | No breach; summary judgment proper |
| Is res ipsa loquitur applicable to livestock escapes? | Res ipsa could show breach by neglect | Res ipsa not applicable in livestock-escape cases | Not applicable; plaintiffs must show actual negligence by Miller |
| Are post-accident repairs admissible to prove negligence earlier? | Repairs show prior negligence | Repairs are inadmissible to prove prior negligence under 60-451 | Admissible only to show condition, not negligence; post-accident repairs barred as proof of prior negligence |
Key Cases Cited
- Walborn v. Stockman, 10 Kan.App.2d 597 (1985) (visual inspection sufficient; no liability where fence looked adequate)
- Harmon v. Koch, 24 Kan.App.2d 149 (1997) (doctrine of res ipsa loquitur in livestock-escape cases not applicable)
- Duncan v. Railway Co., 86 Kan. 112 (1911) (jury may not infer beyond proven facts; cannot rely on imagined facts)
- Estate of Pemberton v. John's Sports Center, Inc., 35 Kan.App.2d 809 (2006) (unsupported credibility challenges do not create genuine issues)
- Sharples v. Roberts, 249 Kan. 286 (1991) (summary judgment standard in negligence actions; evidentiary burden on moving party)
- Esquivel v. Watters, 286 Kan. 292 (2008) (caution in granting summary judgment in negligence cases)