212 So. 3d 6
La. Ct. App.2017Background
- On March 24, 2012 a cow owned by H.R. Williams Cattle Co. (HRW) escaped an enclosed pasture through a fence damaged by a fallen tree and ran into plaintiff Zaine Kasem’s yard; Kasem alleges the cow ran over and injured her.
- HRW’s day-to-day manager, Clay Espey, inspected the fences on March 23 and found no damage; he later found a fallen limb and repaired the fence after the escape. Heavy rain had occurred a few days earlier; the parties disputed exact storm dates but climatological records established the storm was March 21–22.
- Defendants admitted ownership of the cow but denied it struck Kasem and argued the escape was caused by a fortuitous event (fallen tree) and that their recovery efforts were reasonable.
- Kasem sued under La. C.C. art. 2321 (owners answerable for animal-caused damage where owner knew or should have known of dangerous behavior and failed to exercise reasonable care), alleging negligent fence maintenance and negligent, provocative recovery efforts that agitated the cow.
- The trial court granted summary judgment for defendants; the appellate majority reversed and remanded, holding genuine issues of material fact remain as to reasonableness of defendants’ recovery efforts (precluding summary judgment), but affirmed summary judgment as to fence-maintenance breach due to uncontroverted evidence that Espey inspected and found the fence intact before the limb fell.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability under La. C.C. art. 2321 for animal-caused injury | Kasem: defendants negligently maintained fence and negligently provoked the cow during recovery, so they knew/should have known of danger and failed to exercise reasonable care. | Defendants: escape resulted from a fortuitous event (fallen limb) and they exercised reasonable care in inspections and recovery; no factual support for breach. | Court: Genuine issues of material fact exist about the reasonableness of recovery efforts (summary judgment improper on that theory); no genuine dispute that fence was intact at last inspection (summary judgment proper only as to maintenance breach). |
| Judicial confession over timing of storm/tree fall | Kasem: defendants’ earlier pleadings admitting the tree fell during the storm are binding judicial confessions. | Defendants: earlier statements were mistaken as to storm dates; they promptly corrected pleadings when official weather data showed error. | Court: Not a binding judicial confession; defendants showed error and corrected it—confession not enforced. |
| Effect of fortuitous event (act of God) on liability | Kasem: even if tree fall was fortuitous, defendants’ post-event conduct can still be negligent. | Defendants: fortuitous event caused the escape and precludes liability. | Court: Fortuitous event does not preclude liability for later negligent actions; negligence in recovery remains actionable. |
| Causation—whether cow actually injured Kasem | Kasem: she was run over and thrown into a truck bed causing injuries. | Defendants: some witnesses say Kasem jumped into truck to avoid cow; factual dispute on causation. | Court: Record contains disputed facts on causation; trial, not summary judgment, must resolve. |
Key Cases Cited
- Pepper v. Triplet, 864 So.2d 181 (La. 2004) (discusses amendment eliminating strict liability for animals other than dogs and requiring proof of owner knowledge/negligence)
- Cornish v. Ford, Bacon & Davis Constr. Corp., 304 So.2d 361 (La. 1974) (owner’s duty includes reasonable measures to prevent cattle escaping, including fence condition)
- Boyer v. Seal, 553 So.2d 827 (La. 1989) (pre-amendment article 2321 jurisprudence refusing strict liability absent unreasonable risk)
- Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730 (La. 1994) (standards for genuine issue and material fact on summary judgment)
- Everett v. State Farm Fire & Cas. Ins. Co., 37 So.3d 456 (La. App. 1 Cir. 2010) (enumeration of duty/risk analysis elements in negligence cases)
- Walker v. LeBlanc, 111 So.3d 1069 (La. App. 1 Cir. 2012) (application of article 2321 post-amendment — owner must have known or should have known of dangerous propensity)
- Tucker v. St. Tammany Parish Sch. Bd., 888 So.2d 235 (La. App. 1 Cir. 2004) (permitting correction of pleadings where initial statement was made in error)
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (trial court’s role on summary judgment—no credibility determinations)
- Willis v. Medders, 775 So.2d 1049 (La. 2000) (resolve doubts against mover; construe inferences for nonmoving party)
- Pumphrey v. Harris, 111 So.3d 86 (La. App. 1 Cir. 2012) (materiality of facts governed by substantive law)