427 S.W.3d 507
Tex. App.2014Background
- Rodriguez sues Sandhill Cattle Co. for damages after a collision with cattle; cattle escaped a distant pasture with a broken hot-wire,”
- The pasture was surrounded by a functioning hot-wire; later, cattle roamed area after escape; evidence shows the hot-wire had been broken.
- Trial court granted Sandhill a directed verdict, finding no §143.074 violation; Rodriguez appealed and contends the wrong legal standard was used and evidence of negligence existed.
- Texas has no common-law duty to fence livestock; duty arises under §143.074, prohibiting permitting livestock to run at large in counties with a local stock law; court adopts Rose v. Hebert Heirs interpretation of “permit”; directed verdict standard mirrors summary judgment evaluation.
- Evidence does not establish Sandhill permitted cattle to run at large; there is no proof of explicit leave, gate openings, or prior escapes; the record lacks showing that Sandhill failed to inspect or knew of the hot-wire’s inoperability; thus no §143.074 breach and no basis to deny directed verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §143.074 requires proof of Sandhill permitting cattle to roam | Rodriguez asserts Sandhill’s conduct breached the statute | Sandhill argues no breach without proof of permit | Yes; Rose's definition applies and no breach shown |
| Whether evidence supports negligence or breach of §143.074 | Rodriguez argues some negligence evidenced in maintenance of fence | Sandhill contends escape does not prove breach | No sufficient evidence of breach to create fact issue |
| Whether escaping cattle creates a presumption of negligence | Rodriguez argues escape implies negligence | Beck v. Sheppard rejects presumption | Presumption rejected; escape alone not negligence |
| Whether record shows Sandhill permitted cattle to run at large | Record suggests possible permissive conduct | Record lacks evidence of permission or improper conduct | No evidence Sandhill permitted cattle to roam; directed verdict proper |
Key Cases Cited
- Gibbs v. Jackson, 990 S.W.2d 745 (Tex. 1999) (no common-law duty to restrain livestock; liability can arise under statute)
- Rose v. Hebert Heirs, 305 S.W.3d 874 (Tex. App.—Beaumont 2010) (defined 'permit' as consent or leave; applied to §143.074)
- Beck v. Sheppard, 566 S.W.2d 569 (Tex. 1978) (disavowed presumption that escape equals negligence)
- Schumacher v. Caldwell, 206 S.W.2d 243 (Tex. 1947) (escape not automatically negligent of owner)
- Goode v. Bauer, 109 S.W.3d 788 (Tex. App.—Corpus Christi 2003) (liability requires more than presence of livestock in forbidden place)
- Prudential Ins. Co. of America v. Financial Review Servs., Inc., 29 S.W.3d 74 (Tex. 2000) (directed verdict standard akin to summary judgment standard)
- Yorkshire Ins. Co. v. Seger, 279 S.W.3d 755 (Tex. App.—Amarillo 2007) (directed verdict review; probative evidence standard)