*1 96
MARY LARSON-MURPHY, Cross-Respondent, Appellant, Plaintiff, v. STEINER,
EDWIN VIOLET STEINER, DARIN ZANCANELLA, and AUGUST Respondents Defendants, Cross-Appellants. No. 98-441. July Heard 1999. September 28, 1999.
Submitted
Decided December
2000.
MT
334.
St.Rep.
1411.
96.
For Donald L. Colette Hanson, Crowley, Haughey, Toole & Baumgardner-Davies, Walen, Walen, Dietrich, (Steiners); Stacey Billings & Billings James (Zancanella). Opinion
JUSTICE NELSON delivered the of the Court. from a directed Mary Larson-Murphy (Larson-Murphy) appeals ¶1 14, 1998, in judgment May verdict entered on favor of Defendants Edwin, Violet, (Steiners), Judi- and Darin Steiner the Thirteenth Court, County. appeals cial also Larson-Murphy District Yellowstone January granting summary judg- 1997 order the District Court’s (Zancanella). August ment in favor of Defendant Zancanella orders, three of the District Court’s cross-appeal The Steiners ¶2 summary judgment, respectively denied their motions for on 19,1997, 29,1996, and and their motion to recon- October November sider, 6,1997. January on further part, part, pro- We affirm in reverse remand for
ceedings.
ISSUES PRESENTED on parties appeal The have raised numerous issues them for discussion as follows: cross-appeal. We consolidate granting summary judgment 1. Did the District Court err in Zancanella? denying summary judgment Court err in
2. Did the District Steiners? grant the Steiners’ motion properly
3. Did the District Court directed verdict?
FACTUAL BACKGROUND a vehicle driven This case involves an accident between by the Steiners. Angus and a black bull owned Larson-Murphy 8,1993, Larson-Murphy driving Shortly p.m. May after 11:30 Billings, Hoskin Road near home in a southbound direction on by an irri- highway rise in the created slight Montana. She crested culvert, the bull rolled Upon impact, ditch and struck the bull. gation through the windshield of vehicle. onto the hood and crashed the bull broke virtu- According testimony, impact to trial with dislodged jaw, mid-face and every Larson-Murphy’s ally bone *5 of the bone actually Bull hair removed from several her teeth. was As a re- surgeries required. reconstructive were Multiple fractures. dam- accident, Larson-Murphy’s permanently vision was sult of the aged. Larson-Murphy that was not at fault. She was undisputed It is high- lawfully investigating at the time of the accident. The
driving way Larson-Murphy’s speed approximately calculated at patrolman miles-per-hour, speed and stated that was not a factor the colli- hitting avoided sion. He further stated that no motorist could have bull, standing highway, which was in the middle of the because of night slight highway. of the and the rise in the the darkness two-lane, county highway a that it is nei- paved Hoskin Road is highway part primary highway ther a state nor a of the federal-aid system. undisputed fairly signif- The facts indicate that the road sees Also, icant motor vehicle traffic. the accident occurred on a stretch of district,” lying provided pursuant Hoskin Road within “herd as to §§ through 81-4-301 MCA. one, It apparent escaped is from the record that the bull from not enclosures. It is that had undisputed placed
but two the bull been triangular, roughly yards the Steiners in a fenced located pasture breeding purposes. from Hoskin Road with five heifers for The adjacent Steiners had the triangular pasture pas- leased both and an part agreement, ture from Zancanella. As of the lease the Steiners agreed to maintain The pasture all of fences. Steiners were re- quired liability lease, to maintain under the and it insurance was understanding responsible that the Steiners would be parties any damage might escaping. be caused their livestock unclear, dispute, escaped 10 It is and therefore in as to how the bull ¶ triangular pasture pasture from the to the other leased which borders Road, by neighbor it to the acci- prior Hoskin where was observed accident, investigating dent. After the both Darin Steiner and the highway patrolman inspected pasture the fence which enclosed the that the fence intact on the west side of Hoskin Road and found signs There no of broken gates open. no had been left were wire, damaged posts, gates. fence or downed barbed however, con- During litigation, Larson-Murphy the course of gate perime- in the escaped through tended that the bull have side of Hoskin Road. enclosing pasture ter fence west that the was loose with wide Larson-Murphy presented gate evidence di- wires, irrigation passed an ditch gaps between the and that which rectly gate gap beneath the created a under animal could es- cape pasture. gate question from the The located within 100 feet of the accident site. 12 Darin Steiner concededthat the fence had perimeter apparently
¶ failed to restrain the night question, bull on the and admitted that capable the bull was over the fence and jumping thereby obtaining highway. access to the Edwin Steiner also testified that he was aware dangerous freely area, it would be to allow livestock to roam in the Nevertheless, unrestrained consistently fences. the Steiners have gates maintained that the fences and on the leased were property well-maintained the time of the accident.
PROCEDURAL BACKGROUND *6 Larson-Murphy complaint filed her with District Court on ¶13 26,1995, April generally alleged and that the al- negligently Steiners Angus lowed the premises occupy black bull to leave their leased and highway right-of-way. Her complaint was later amended and filed January 5,1996, Zancanella, on property to include the owner of the Likewise, Larson-Murphy alleged leased to the Steiners. Zancanella, adjacent Road, as owner and of the land lessor to Hoskin negligent operating in and in controlling premises was a reason- ably safe manner. Court, 8,1998 Memorandum, in May The District its concluded
¶14 open range pursuant the Hoskin Road area was not to § 60-7-102(4),MCA, accordingly open range and “the doctrine does not apply although this case.” The Steiners claimed that the leased premises escaped from which the bull were located within a herd dis- trict, Road, law, open range. Hoskin as a matter of was The Steiners legal theory highway open range, maintained that if the was within motorists, they anyone, including prevent had no the bull wandering occupying highway, onto and and therefore could any damages by Larson-Murphy. not be liable for suffered Larson-Murphy alleged open range apply that the doctrine does not districts, roads, including traversing herd and that the Steiners legal duty “legal pursuant had a to maintain a fence” to state law. legal The court’s conclusion that the accident did not occur ¶15 and “open range” summary judgment followed a series of motions for brought by respective a motion for reconsideration Defendants. 29,1996, mo- On October the District Court denied Defendants’ had summary judgment, concluding tion for that the Defendants maintain fences they failed to establish that lacked a keep and livestock offHoskin Road. The court concluded issues ofma- dispute. terial fact remained in Then, January 6, 1997, granted on the court Defendant summary judgment, pursuant
Zancanella’s motion for to a “motion to him dismiss” dismissed from this action. The court concluded he accident, did not own the bull involved with the not responsi- maintaining any time, in question. ble fences At the same reconsider, the court nevertheless denied the Steiners’ motion to again that the concluding issue of whether the accident occurred in area remained a material issue of fact. again summary The Steiners’ moved for judgment on October 1997, arguing although the accident occurred within a herd dis trict, this Court’s decision in v. Williams Selstad 247, provided a legal determining basis for that the acci
dent nevertheless occurred in open range. Court, The District on No 19,1997, not, vember determined that it could as a matter of law: [R]ulethat this area open range, and that the open range no-duty applies law to the Defendants in this case. Material issues of fact still exist regarding area, status of this and the road where the accident occurred. These jury facts are for a to decide. Nevertheless, the court entered a directed verdict in favor ofthe May 13,1998, Steiners on after the begun May 11,1998. trial had judgment This was entered without an accompanying memorandum providing legal basis for the court’s decision. Both Larson-Murphy appealed. the Steiners Due to the
controversial “open nature of the issue, doctrine” law Court accepted also numerous amicus curiae briefs.
STANDARD OF REVIEW By way appeal and cross-appeal, parties ¶20 both challenge the District granting Court’s and denying summary motions for judg- ment during proceedings below.Our review ofthe District Court’s summary judgment rulings 56, governed by is Rule M.R.Civ.P.Sum- mary judgment proper only is where the complete record reveals a ab- genuine sence of issues of material fact and the moving party is enti- tled judgment 56(c),M.R.Civ.P; as a matter oflaw.Rule Clark v.Ea- gle (1996), Sys., 279, 283, 995, Inc. 279 Mont. 927 P.2d 997. We ruling scrutinize a trial court’s on a summary judgment motion de novo, utilizing the same evaluation upon as district court based 56, 191, 15, Rule Caraway, M.R.Civ.P. Dorwart v. 1998 MT ¶ 196, 15, 1121, Mont. P.2d 15. ¶ ¶ negligence gener are Finally, this Court has held issues
¶21. and are left for a ally susceptible summary judgment properly (1996), 262, 266, Bergo at trial. Kolar v. 280 Mont. jury determination 929 P.2d 869. verdict, granted pursuant is Our review of a directed 50(a), M.R.Civ.R, principles. We governed
Rule
well-established
party against
whom the
consider
the evidence introduced
Co.,Inc.
granted. Riley
directed verdict is
v.American Honda Motor
(1993),
128, 131,
evidence,
856 P.2d
198. If that
when
259 Mont.
tends
the case
light
party,
viewed in a
most favorable to the
to establish
the directed verdict.
party’s pleading,
made
we will reverse
131, 856
(1986),
Riley,
(citing
P.2d at 198
Boehm v. Alanon
ever, correct; by the court given if the court’s conclusion is the reasons Riley, granting the directed verdict are immaterial to our review. Realty Corp. v.M. &L. (citing Laurie P.2d at 198 404, 408, 1192, 1194). the directed Here, gave entering Court no reason for the District Nevertheless, review the of the Defendants. we will verdict favor Larson-Murphy and deter- light evidence in the most favorable to different persons mine it is sufficient for reasonable to draw whether conclusions.
DISCUSSION I. Introduction misconception import general This case involves rela- involving doctrine” in matters “open range Montana’s and users of motor vehicles the owners of livestock tionship between below, sum, governing the action as highways. the law on Montana (1) if Court, can be summarized as follows: expressed by the District area, range” then the directed ver- “open accident occurred in an anyone to legal duty no dict because the Steiners owed proper middle Hoskin Road standing in the prevent their black bull from posed such an obstruction foreseeable risk night regardless (2) motorists; if the accident did not occur within passing under the circum- area, may proceed, because then the action *8 conceivably legal duty pre- stances the Steiners owed a to motorists to occupying obstructing vent their bull from and Hoskin Road. expression prevailing We conclude that as an law Montana, foregoing Namely, has termed is incorrect. what been range apply the “no rule” under the doctrine does not open legal relationship traveling livestock owners and motorists between highways. on this state’s Nevertheless, that the we also conclude “law of the (1987), Finley
remains the law of this state.” See State ex rel. Martin v. 242, 245, 497, 499. Further, we also conclude that “open range” the term includes all highways private outside of enclo by public, provided 81-4-203, MCA, sures and used as under un § by Martin, Legislature. less so modified this state’s See State ex rel. 244, 738 (stating 81-4-203, MCA, Mont. at P.2d at 498 that under “all § highways in the state are included under the open range concept”); § 81-4-306, (proscribing willfully MCA livestock permitting owners from running large any district); livestock from within herd 60-7-201 (prohibiting MCA grazing, remaining upon, livestock from or occupying highways). certain state starting point addressing foregoing Asa apparent contra-
dictions, the “open range” “open range terms they ap- doctrine” as pear-in Montana interpretive statutes case little law have or nothing at all legal relationship to do with the between livestock own- ers and motorists under a theory negligence. Simply stated: the as- sumption person’s may lawfully that a occupy “wander” —or upon highway in an public “open range” area of this state does — absolutely not determine whether or not the owner owes a subse- quent legal duty to may lawfully motorists. Most motor vehicles also occupy public highways. governing and roam In the of a stat- absence however, ute addressing legal relationship, enjoy neither blanket immunity exercising ordinary See, from e.g., care. MCA law, (providing “[ejxcept by everyone as is re- provided otherwise sponsible injury for the results of his willful acts but also for Em ordinary occasioned to another his want of care or skill in the man- willfully agement property person except of his so far as the latter has himself”). ordinary brought injury upon or want of care doctrine, contrast, under current as ex Montana’s statutes, under our “Containment of Livestock” livestock owners pressed livestock, legal duty prevent owe no to other landowners to their accidentally tres lawfully occupy open range, otherwise onto the passing property other landowner’s unfenced no more. —and pronouncement may While this seem in direct conflictwith clear enuncia (see, tions of e.g., Bartsch law issued this Court v.Irvine Co. 302), it that the equally apparent underlying legal *9 principles expressed by Montana’s doctrine statutes have time, misapplied specific been misconstrued over in the context ofthe legal relationship at issue here. As the here parties acknowledge, Larson-Murphy’s negligence
¶30 legal duty action be maintained if there or obligation that to conform a required particular Defendants to standard of motorists, protect conduct in order to as foreseeable plaintiffs, against of harm. generally Lopez unreasonable risks See v.Great Falls Services, Inc., 199, 27-28, 295 416, Pre-Release 1999 MT Mont. ¶¶ ¶¶ 27-28, 986 1081, duty obligation P.2d 27-28. The of a or existence is ¶¶ a question Yager of law to be determined the court. See v. Deane (1993), 453, 456, 1214, 1216. Finally, 258 Mont. 853 P.2d no immuta determine duty ble rule can be extent a legal established or obligation every future; rather, obliga circumstance necessarily adjudicated upon tion must be a case-to-case basis. See (1996), 342, 362, Hosp. Corp. Busta v. Columbus 276 Mont. (1969), 431, 437-39, 458 134 (quoting Mangv.Eliasson 781-82). turn, In question “problem is a of the relation be- legal obligation tween individuals one a for the imposes upon al., Page benefit of the other.” W. Keeton et. Prosser & Keeton on the (5th (hereinafter 1984) Keeton). Torts, Law ed. Prosser & See § (Second) (stating also Restatement of Torts comment f relationship parties precedent “[s]ome or some action is between necessary duty, positive to create such a and duties of action are not except normally under circumstances in which imposed benefit actor”).1 the other to the outweighs burden Accordingly, legal duty a court’s determination of in this in- particular parties: stance must be tailored to the of the relationship escaped an owner of livestock whose bull confinement and then wan- (Second) provides “[w]here of Torts an act is one 1. Restatement another, recognize involving a of harm which a reasonable man would as risk negligent magnitude as the risk is unreasonable and the act is if the risk is of such outweigh regards utility particular man- what the law as the of the act or of the ner in which it done.” lawfully county highway, and a motorist onto and dered obstructed in- problem And therein lies the driving a vehicle that same road. on governing “open Montana’s current jurisprudence herent within our Namely, stat- will address. no range doctrine” as the discussion below any legal to the particular or absolves duties explicitly ute creates yet, regrettably, this Court here under the circumstances parties Leg- the Montana precedent has set forth seem indicate would islature, codifying various tenets modifications doctrine, body such a of law. comprehensive have established conclude it has not. We Thus, is, not, to our discussion and what is proceed we what addressing appeal. presented
the law of case before issues Range Montana’s Doctrine Open II. The law rule
A. common west, “open range doctrine” in the American contrast strictly English law held the owner oflivestock liable for common damages property to another landowner’s as a result of a tres caused (stating P. pass. See Monroe v. Cannon 61 863 damages if common law rule that an owner of cattle must answer *10 they stray upon neighbor’s land of and down his the another “tread (stat trees”); Keeton, herbage, and his corn or his & 76 spoil Prosser “[tjhose re ing keep purposes who such animals for their own are peril, against the their in quired protect community, at the risk volved”);Roy Andes, Myth A Triumph Principle: Saga H. Over The of (1995) 485, 486 Open-Range, (explain the Montana 56 Mont.L.Rev. of ing jurisdictions, the applies common law rule in most American States) (hereinafter Andes). particularly in the eastern United liability theory, proving degree Pursuant to this strict of unnecessary. Thus, regardless of fault was the owner was liable pure the from accident or an intentional trespass whether resulted act. The that a livestock owner must “fence-in”or in some principle prevent trespass developed manner restrain his livestock to such a general generally Thompson common rule. See v. law 1022, 1025;Andes, (1959), 500, 506, 333 56 Mattuschek Mont.L.Rev. at 486. the in the American west. B. common law Modification of rule, foregoing common law Montana’s As modification the during territo- range early hold this state’s
“open doctrine” took legal relationship be- days exclusively applied rial the 1800s 108
tween landowners an redefining aggrieved party’s remedy tres- for pass. doctrine, 7 strictly Under this order livestock li to hold a owner trespass damages, for
able landowner carried the burden estab lishing, precedent, as a condition that he had constructed a “lawful fence” entire surrounding property. his See Schreiner v. Creek Deep (1923), 104, 110, 217 663, 665.Otherwise, Ass’n Mont. Stock P. live private graze will, stock could “roam” property onto and and water aggrieved and the landowner could not damages recover for such trespass. (1874), 195, 197, 202. See Smith v. Williams From a pragmatic standpoint, did than nothing doctrine more constructing allocate the cost of maintaining a fence to landown ers who wished their property. to exclude livestock from explained by As scholars and years, various courts over the underlying common modifying reason for remedy law as well as reassigning the cost providing burden —and with owners trespass liability what amounted to a shield —was that the industry 19th century availability cattle on the was based domain, unoccupied public which as a matter of state and federal Scott, policy grazing purposes. remained See Valerie Weeks Range Industry: Law, The Cattle Its Western Land Effect (1967) 155, 156, 178-81 (stating typical Mont.L.Rev. that a rancher 50,000 2,000 in the late 1800s required between acres of land cattle) (hereinafter Scott). which his upon graze Scott’s article early quotes indicating underlying Colorado decision policy shifting fencing namely cost of farmers —who landowners — person’s property: wished exclude another livestock from their
The principally by commons are now owned State and general and if government, grasses grow are not thereon depastured, they decay. waste and And while it impractica- will purchase stock, ble to fence sufficiently pasture lands for the fenced, and, fact, the tillage and meadow lands can in point be nearly are all parts now inclosed in of the state.
Scott, Fraker, (quoting 28 Mont.L.Rev. at 179 v. Morris Colo. (1880)). Phelps 428-29 See also Lazarus v. 152 U.S. *11 477, 478, 38 363 was not (stating thought proper, S.Ct. L.Ed. that “it gradually up by proprietors, as the land was taken individual to change country particular, oblige the custom of the in that cattle heavy land, expense fencing to incur the their or held as owners be
109 the accidentally straying upon their cattle by reason of trespassers others”). land of decision, an Smith Court’s 1874 Thus, days of this in the from liabil range immune open the free to roam cattle were
owner’s prop unfenced neighbor’s onto wandered in the event livestock ity 109, 217 P. at Schreiner, Mont. at damages. See erty and caused state public range long been state has (stating “[t]his per and now are have been ownership private livestock of wherein hindrance or without graze to government license of the mitted domain”). from It was unoccupied, public open, restriction on landowners relationship between particular (1902), 27 See, e.g.,Beinhorn v. Griswold “no-duty” rule arose. “cattle-owning 79, 90, (explaining 69 P. duty to fence defendant the land-owning did not owe to plaintiff to the former latter “did not owe in” and likewise the his cattle to obligation under neither of them was fence them out.... to regard”). the other in that custom, legislated rules were trespass these While born As this day to this Montana. early and remain codified
into law Co., decision, “[w]hen v. Irvine Bartsch pivotal in its Court stated continued, and state, open range policy Montana became trespass with which dealt enacted various statutes Legislature any action support necessity livestock and the of lawful fences (emphasis Bartsch, 427 P.2d at trespass.” added). Smith, parties as the at issue in statutes The Territorial sev- substantially the same as address, in fact thoroughly are
amici 81-4-101, (defining MCA See at issue here. § eral of the statutes liability 81-4-215, of stock” fence),2 (imposing MCA on “owners and § “any breaking into from livestock damages resulting trespass for all legal” pursuant the enclosure is if the “fence of enclosure” MCA). any affir- create did not “legal fence” statutes Accordingly, es- “legal fence”statutes fence; rather, duty mative chose landowners who care for those only a standard of tablished 81-4-101(5), MCA, fence, includes under noted that a lawful 2. It should be through bluffs, over or ridges other barriers rivers, hedges, mountain “all le- the more common pass,” addition to impossible for stock which it is wire. gally-defined of barbed barrier *12 110 (estab- 81-4-103,
“fence-out” a owner’s animals. See MCA § lishing liability damages “by injury reason of to stock” in the event MCA, fence in 81-4-101, defective); 81-4-104, not described is § § MCA (requiring kept that wire in repair barbed fences be so as not to livestock). injure Hence, the that a custom landowner must bear the financial “fencing-out” neighbor’s
burden of his in cattle order to dam recover ages than requiring the livestock owner to bear more the far —rather “fencing-in” onerous cost of his statutory herd —became the doctrine ofMontana and determining liability other western states in for tres See, pass. e.g., Smith, 2 Mont. (holding at that the “lawful fence” statute substantially right must be with “before a of complied accrues,” stating action and that the was “in of action the nature tres damages,” ...to pass recover after the defendant’s cattle en broke and tered the farm or of plaintiff, destroyed grain inclosure and his Court). (Wade, crop) C.J., writing Lyman for the See also Fant v. 61, 22 120 (discussing trespassing gener P. sheep). See Andes, ally (indicating 56 Mont.L.Rev.at 487 that most other western passed Montana’s); substantively Coby states statutes identical to Dolan, Examining Viability Lord Yesterday: Open Another Range West, Laws and Livestock Dominance in the Modern 5 Animal 147,151-52(1999) (discussing open L. custom in the west courts). early its recognition and various ' statutory English This modification ofthe common law strict li ability acknowledged proper by rule was and deemed this Court. See Beinhorn, (stating 69 P. at “[b]y Mont. at custom as byaswell statute the common law of has England been so modified Montana undoubtedly po [t]his ... a legitimate exercise of the power”). 1-1-108, (originally lice See MCA also enacted in providing and that in state there is no common law in case by statute); the law is declared MCA en (originally where providing derogation acted and that statutes of the com respecting subjects mon law “establish the law of this state relate, they provisions proceedings which their all under objects liberally them are to be construed with a view to effect their added). to promote justice”) (emphasis Thus, statutory proceeded into the “open range doctrine” century. 20th Range Exceptions Open
III. Doctrine A. Exclusion intentional conduct range doctrine was century turn of the the west’s By the statutory from the
narrowed, excluding
trespasses
all but accidental
Montana,
a U.S. Su
rule. In
the modification followed
“fence-out”
decision,
arose in Texas. The
Phelps,
Court
Lazarus v.
preme
prece
essentially waived the “fence-out” condition
Lazarus decision
intentional, reasoning that the
trespass
dent in cases where the
narrowly only
trespasses
to those
applied
doctrine
in
merely
accidental —where livestock
followed the inherent
were
Lazarus,
stinct to seek food and water. See
152 U.S. at
S.Ct.
Fant,
61-62,
(indicating
passes resulting negligent from or even conduct English the livestock owner followed the common law rule and requirement, leaving only purely waived the lawful fence accidental doctrine, trespasses open range required under the a See, Bartsch, fence in damages. e.g., lawful order to recover 149 Mont. (providing herding at P.2d at 305 that “willful or intentional driving or land them placing oflivestock onto another’s unfenced or so trespass exception open range near that to occur”is an bound doctrine) (1965), 278, 283, (quoting Montgomery Gehring v. 145 Mont. 403, 406);Andes, nar (discussing 56 Mont.L.Rev. at 488-93 application open range row doctrine under Lazarus to include livestock); 1-2-103, trespass (providing accidental MCA that stat § of this state derogation utes in of the common law “establish law they liberally and should be respecting subjects to which relate” added). objects”) their (emphasis construed to “effect B. certain animals Exclusion of has, time, Legislature open range over amended the Montana’s allowing from prohibit
“Containment
statutes to
owners
ofLivestock”
81-4-201,
large.
(prohib-
to run at
See
MCA
certain kinds of animals
§
swine,
llamas,
bison, ostriches, rheas, emus,
iting
sheep,
alpacas,
goats
81-4-204,
“running
large”);
(prohibiting
from
at
MCA
male
§
81-4-210,
equine
running
large
open range);
from
at
on the
MCA
§
any
(prohibiting
purebred,
any
kind of bull that is not
bull be-
every year
running
tween December
and June 1 of each and
at
large upon “any
public highways,
such
open range, or national forest
reserve”);
81-4-211,
(prohibiting
breeding
MCA
female
cattle un-
§
accompanied by a purebred
running
large upon
bull from
at
“the
reserves”).
public ranges
Jorgenson
or national
forest
See also
v.
477, 493,
Story
(stating
254 P.
that “when
public highway,
cattle are in the
charge
person directing
”).
movements,
controlling
they
their
‘running
large’
are not
at
foregoing
The
statutes are accompanied
penalties, including
monetary fines, liability
damages
any party injured by
“to
the viola-
tion,”
animal,
offending
killing
castration of the
and even
of the offend-
81-4-202,207,208,209
Thus,
ing
any
animal. See
MCA.
tres-
§§
pass resulting
permitting
from the intentional act of
such animals to
large
run at
precedent
open range
waives the “fence-out”condition
ofthe
81-4-217,
(allowing
“wrongfully”
doctrine. See
MCA
retention of
tres-
§
passing
breaking through legal fences);
animal as well as those
(providing
MCA
that “[t]his section
not be construed to
require
injury
fence in order to maintain an action for
done
an-
law).
running
large contrary
imals
Further,
81-4-202, MCA,
monetary penalty
under
as well
“damages
injured” language
as the
party
expanded
scope
provide
general public,
doctrine to
for the
benefit
just
damages
trespass.
a landowner who suffers
as a result of a
*14
81-4-201,
Nevertheless,
204,
the
proscribed
conduct
under
§§
211, MCA,
Thus,
explicitly
escape
intentional.
an accidental
of one of the
identified under these statutes from an
animals
owner’s
premises
per
by
is not a
violation. As made clear
this Court in
se
Monroe,
Lazarus,
Supreme
open range
and the U.S.
Court in
the
doc
trine,
law,
as a modification of the common
included inten
never
Monroe,
324-26,
tional conduct. See
at
Montana has landowners to exempt See open range. 81-4-301, (stating area of land from the MCA require- § creation); 81-4-322, ments for herd district (stating requirements MCA § districts). absolute; for horse herd exemption This is not such a district See maybe only year. 81-4-305, in effect for certain months of the MCA. § Critical to our discussion is the (legal fact the term “fence” otherwise) form, appear any does not once under this Part in nor Legislature did the highways include reference to and motorists. See 328, Further, through 81-4-301 MCA. aside herd from horse §§ statutes, general district the more district prohibit herd laws willful acts. See 81-4-306, (providing penalty MCA to owner who See also Jenkins v. “willfully permits large”).4 run at animals to codified, originally open range 3. all As definition meant lands enclosed 1925, changed a lawful fence. This definition was to the current two-wire standard. Thus, again purpose See Ch. L. 1925. in concert with the doc trine, fencing required apply land from did not to livestock remove animals, owners, to ex who chose to restrain their but to landowners who wished 14, 17, persons’ Siegfried clude other livestock. See also v.Atchison 1006, 1008 (concluding “presence privately that the constructed fences along highway right-of-way open range”). the area is not does not indicate 4. This intentional conduct standard was a result of a 1925 amendment. Ori- ginally, flatly prohibited running large, livestock were with no mention of Compare intent. Ch. L. with Ch. L. 1925. For reasons that remain un- statute, clear, no similar willful standard was amended to the horse herd district require MCA. which does not intentional conduct. See *15 114 Ranch, (1968), 463, 466-67,
Valley Inc. 443 P.2d Garden (equating “willfully” “purposely knowingly” with con act). Thus, cluding escaped cattle did not result from willful simi MCA, 220, through lar to 81-4-201 the herd district statutes do not explicitly contemplate that a livestock owner whose animal acciden tally escapes premises per from the owner’s commits a se violation of statute, may lawfully occupy or that livestock roads within herd under the care districts of herders. omissions, light particular In ofthese and of relevance to the ac here,
tion
this Court’s decision in
v. Selstad
235
Williams
137,
247,
addressed whether herd districts under §§
328, MCA,
through
exception
open
81-4-301
to Montana’s
provided
range doctrine.
the Court addressed whether the stat
Specifically,
imposed duty
keep
utes
on livestock owners to
livestock from “wan
Williams,
dering
roadway
onto the
within the herd district.”
Ultimately,
“Legisla
Mont. at
“the
doctrine relieves owners or
of livestock of
roadway,”
duty
keep
wandering
their livestock from
onto the
inferentially
duty”
applied
which turn
“no
standard
livestock
animals are
accidents with motorists.
owners whose
involved with
Williams,
Mont. at
81-4-301 instincts, freely stock follow their wander in search of food water, came to an end once such a district was created. If owners statutorily proscribed permitting are their animals livestock “has no large,” to “run at then the notion that the owner wandering” longer no exists. Com prevent the livestock from (prohibiting any MCA livestock owner from “will pare § district) large herd with fully” permitting animals to run at within Bartsch, (stating at 305 that an owner of wandering open livestock from prevent livestock has no out turn, highways if the includes “all range country). already have con public,” enclosures used as we private side longer are no cluded, through herd districts highways passing then law, part open range, during periods of the as a matter of those when is in herd district effect. Again, express broadening underlying legal there is no re- *16 lationship range that the owners open doctrine addresses: livestock Rather, law, and of herd are no landowners. as a matter districts lon- ger “open range,” open range and “fence-out” rule is no therefore longer required trespass, ostensibly to an for maintain action trespass during returns such to rule districts the common law those (entitled periods they 81-4-307, in when are effect. See MCA “Tres- § passing animals in herd permitting pre- districts” and the owner of 81-4-306, mises “wrongfully” entered animals referred to in § MCA, to damages costs, recover and oflegal with no mention fence re- quirement). Thus, the Court in correctly Williams stated that the herd dis protect
trict statutes “were intended to landowners and owners Williams, 140, 766 turn, livestock.” P.2d at 248. In Court also in was correct its it conclusion that was not clear whether Legislature “Montana’s duty intended to create a owed to motorists through statutes,” Williams, enactment of the herd district at P.2d at and thus a duty may judicially such not be “in serted” 1-2-101, this Court. See incorrectly MCA. The Court as § sumed, however, open range duty” that the doctrine’s “no rule that ap plied exclusively inferentially to livestock owners and landowners applied legal relationship between livestock owners and motor assumption ists —an simply the statutes fail to address. Therefore, we v. overrule Williams Selstad to the extent open range that it holds that duty” may doctrine “no ap rule be plied legal relationship between livestock a owners within herd traveling district and motorists on highways. herd district We further hold, however, statutes, “running that the herd district similar to the above, at large” statutes an explicit legal discussed do establish duty beyond owed livestock owners to motorists the inferential intentionally to not at permit large certain animals to run which, within the again, negligent does not include con districts — Rather, we duct. conclude that the herd district statutes —like the running large at statutes —establish different standard of care for owners of in open livestock from that found areas: range, may lawfully occupy high certain animals be permitted ways, lawfully permitted herd districts to “run at none be large” highways. statutorily highways. designated D. Exclusion state statutes, “running large” at and herd district our Similar highways from the
Legislature 1951 removed certain state statutory arising invoking any explicit duties again, without — and The legal relationship of livestock owners motorists. cer- for owners to use Legislature merely made it unlawful livestock running as highways “place pasturage tain U.S. and state 32-1018-1020, See Ch. L. 1951. Codified under §§ livestock.” RCM, originally inserted under the “obstructions statutes were Bridges and chapter Highways, Ferries encroachments” statutes. statutes, herd how- “running large” Unlike the district
ever, reasonably be as safety highways presumed traffic on such can eventually 60-7-201 purposes one of the what would become §§ Nevertheless, explicit through MCA.5 there never liability, owners that was duty, or standard of ascribed 49-4-216, compare, e.g., (describing MCA to motorists. See and owed per- liability approaching or driver blind pedestrian civil son); liability imputed par- of minors (describing MCA *17 61-6-201, statute); (describing lia- motor vehicles MCA § ents under 61-7-106, driver); MCA bility negligence employee of of § owner any ve- duty any of which collides with (describing of a driver vehicle unattended); 61-7-107, (describing duty of is MCA § hicle which upon striking fixtures or driver of vehicle involved an accident 61-8-384, (describing liability upon MCA property highway); other a § procession). operator of of a vehicle in a funeral Moreover, codified, only the originally a occurred if as violation “wilfully” that 24-hours’ required first livestock owner acted informing the peace be the a officer given written notice to owner highway, finding or of ofhis animals on the a presence owner the duty fencing 1974, charged Legislature the of certain the the State 5. .with Legislature provided the through highways. 60-7-101 MCA. The §See open range eco- of and the purpose of was to “balance the tradition the high- raising problems with the need for safer geographic nomic and of livestock high of taking to the incidence ways policy all feasible measures reduce and the of 60-7-101, highways.” MCA. This See § and fatalities on Montana traffic accidents however, years “grazing of came, after the livestock pronouncement more than codified, express §§ reference to 60-7-201 highways” and offers no statutes were Thus, Legislature clear intended this through MCA. it unclear whether the grazing highways” policy apply as well. statutes of “safer enunciation “habitually the such permits highway by owner such use of livestock.” Otherwise, conceived, originally See Ch. L. 1951. as there was no highway immediate owed livestock owners to other us- ers; rather, highway livestock a occupy could fenced traveled mo- up provided, presence torist until written notice or was the livestock’s highway on a was deemed “habitual.” Today, 60-7-201,MCA,is far less lenient. An owner § oflivestock may lawfully
now permit graze, upon, his livestock to remain or occupy part the right-of-way of of:
(1) highway a state running through cultivated part areas or right-of-way the fenced ofa highway state if in either high- case the way has designated by agreement been transporta- between the secretary tion commission and the transportation part as system the national highways; interstate and defense or (2) highway designated by a state agreement between the trans- portation secretary commission and oftransportation apart as system, ofthe federal-aid primary except provided as in 60-7-202. statute, Under this this Court has held that livestock owners in Montana now be found negligent “liable for rather than wilful conduct which presence results of their cattle on the right-of-ways,” strictly but cannot be held Ambrogini liable. v. Todd 120, 642 (construing the term “permit” subsequent a legislative amendment that excised the “wilful”).Nevertheless, term Legislature expressly provided that MCA, even if a 60-7-201, livestock owner violates “there is no pre § sumption or inference that negligence the collision due to on the part person of the owner or possession of the or driver or 60-7-203, owner of the vehicle.” See MCA. Further, 60-7-202,MCA, under prohibitions of § (1)
MCA, following: do not apply livestock on highways state (2) under the charge herders; of one more parts high- of fenced ways adjacent a highway where device has not been in- (3) livestock; stalled exclude ofa parts highway state part primary system or a department federal-aid which the *18 transportation designates being as impracticable exclude live- stock. Ambrogini, this Court determined that none
¶67 because of the Todd, foregoing facts, owner, the the exceptions applied to livestock “legal duty had a to exercise due care in preventing his livestock from wandering Highway 10." Ambrogini, on 642 P.2dat escape de reviewing facts of the from the
1019. After livestock’s “[t]he we further concluded that reasonableness premises, fendant’s and therefore reversed the jury of conduct is for a to decide” Todd’s Ambrogini, his summary judgment favor. district court’s 1019. Mont. at 642 P.2d at statutes, Thus, explicit foregoing under the terms of on may freely his wander permit
owner of livestock livestock that, enactment, may highways prior to clearly certain defined state Nevertheless, range. under certain part open have once been circumstances, lawfully highways without occupy such livestock highways” Accordingly, violating “grazing livestock on statutes. for livestock owners establishing a standard of reasonable care relationship highways on is legal with motorists such their merely by a fact-driven, inquiry that is assisted circumstance-specific proven violation MCA. of § Summary exclusions E. Therefore, judicial statutory the various modifi- even with exclusions, providing exceptions and Montana’s
cations Smith de- original purpose true to its from doctrine remains rights and remedies aris- until 1967: to determine the cision forward in ac- of livestock owners and landowners ing relationship from the private of live- involving trespass property the accidental tions Legislature open range. Although our lawfully occupying the stock rule to fit the regarding trespass the common law statutorily altered state, time to time modi- subsequently of this and has conditions rule laws, common similarly has not addressed the law fied these it us- owners to the duty, duty, lack of owed livestock regarding highways other than within narrow public in Montana ers MCA, Ambrogini. as addressed in through 60-7-201 scope §§ arising therefore, legal conclude, assertion of duties We mo- livestock and relationship between owners of legal from the “open range scope statutory of Montana’s clearly beyond torists doctrine.”
I Bartsch and Indendi reconsidered V. doctrine,” recently, “open range pursuant fairly Montana’s Until exclusively far, applied thus discussed to all relevant statutes involving the acci- in actions relationship landowners between large on the lawfully run at trespass dental range.
119 however, altered, This course was two this Court’s deci sions, (1967), 405, 302, Bartsch v.Irvine Co. 149 Mont. 427 P.2d Indendi v.Workman 272 Mont. P.2d 1085.Bartsch was the first range decision that looked to the open doctrine to determine whether a or not livestock owner a legal owed to a motorist driv ing highways passing through open range, after a motorist brought an negligence following action for fatal a vehicle accident in volving Likewise, the defendant’s horse. Indendi considered whether open range doctrine a governing “legal ap statutes fence”could be plied to theory livestock owners under a of negligence per se, in a case that also involved an accident between vehicle and horse. light We conclude that in foregoing discussion, ofthe as well as arguments amici, set forth parties both decisions must
be reconsidered.
A. Bartsch v.Irvine Co. accurately The Court in history Bartsch recounted the of open trespass range Bartsch, case 407-409, 427 law. See 149 Mont. at at 304-305. The Bartsch Court first cited the 1874 decision Smith v. Williams, and stated that the “brought action was for damages due to the trespass Next, of cattle on plaintiff’s land.” the Court cited the 1902 Griswold, decision Beinhorn v. and stated that in that case “the doctrine was further and explained discussed in an trespass other action.” The case, Court then cited to the 1923 v. Deep Schreiner Creek Ass’n, Stock and referred to it as “another Next, trespass case, action.” Mattuschek, a 1959 v. Thompson cited for proposition range country “in [livestock] wan Thompson der.” trespass brought was a action after the defendant’s cattle damaged the plaintiff’s barley Finally, crop. the Court cited Montgomery Gehring, v. a 1965 involving decision a boundary dispute between private open landowners where the doctrine was raised. The excerpted quote from Montgomery included open range doctrine rule “[o]ne releasing his livestock onto lands right where he has a so do is under no to restrain them from entering Bartsch, another’s 409, unenclosed land.” 427 P.2d at (quoting Gehring (1965), 278, Montgomery v. 406) added). (emphasis 400 P.2d Omitting land,” the operative terms “another’s unenclosed Bartsch Court then reasoned that because the owner of livestock owed general duty no to “prevent wandering the livestock from .... he cannot negligent be said to be if the livestock do wander —even if such way runs highway right
wandering takes them onto
Bartsch, at 305. In
through
range.”
427 P.2d
open
any of
conclusion,
did the Court refer to
reaching this
not once
Further,
did not cite to
open range doctrine statutes.
the Court
similarly
jurisdiction’s
law that had
ex
other western-state
case
legal relationship
be
open range trespass
tended the
doctrine
motorists,
See,
state laws.
owners and
under similar
tween livestock
(Or. 1960),
(concluding that
e.g.,
v. Curl
Kendall
range ar
right
“[i]f
[in
have a
to be on the road
cattle and horses
*20
road”).
eas],
allowing them on the
negligent
their owner is not
addressing
applying
a series
Subsequently,
of decisions
¶76
relationship
livestock own
open range
between
doctrine
Ranch, Inc.
Valley
v.
ers and motorists followed. See Jenkins
Garden
Haggin Live
(1968),
463,
753;
P.2d
Sanders v.Mount
151 Mont.
443
(1982),
(1972),
73, 500
v.Todd
397; Ambrogini
160Mont.
P.2d
Co.
stock
(1985),
111,
1013;
219 Mont.
Siegfried
v.Atchison
197 Mont.
(1987),
242,
14, 709
1006;
227
Finley
rel. Martin v.
Mont.
P.2d
State ex
137, 766
247;
497;
(1988),
P.2d
P.2d Williams v.Selstad
235 Mont.
453, 853
1214; Indendi
(1993),
v.Work
v.Deane
258 Mont.
P.2d
Yager
Williams, Mont.
64, 899P.2d 1085.But see
man
272 Mont.
(stating
141,
(Sheehy, J., dissenting)
that for their
at
¶77 “may judgment its rule this Court not substitute recognize the (1984), 212 Bay Department v. Admin. Legislature.” for that of See 1, 4 courts 258, 265, 688 (stating province that it is “the Mont. integ it to its they law as find and maintain apply to construe and govern ofthe state as has written a coordinate branch rity ment”). it been Legislature Substituting ofthe agree. judgment its for that We by ignoring accomplished what the Court in Bartsch precisely is by taking a open range doctrine of Montana’s purpose fundamental particular legal relation- body pertains of law that one statutory do simply involved that the statutes applying it another ship and “no-duty”rule address, and, expansive inserting consequently, not date, any legislation. § See that, to has been omitted statute, officeof the of a “[i]n the construction (stating MCA judge simply to ascertain and declare what is in terms or in sub- therein, contained stance to insert what has been omitted or to inserted”). omit what has been We therefore overrule our decision in Bartsch —as well as
subsequent decisions that followed
the extent
it
Bartsch —to
owner,
holds that a livestock
pursuant
“open
to Montana’s
range doc
trine,”
absolutely
owes
no
driving
high
motorists
on public
ways
open range
Yager,
areas. See
B.
v.
Indendi Workman
decision,
Workman,
driver,
our 1995
injured
Indendi v.
Indendi, brought a negligence
against
claim
owners
a horse
with which she had collided. It
undisputed
highway
was
that the
question
part of
the federal-aid primary system, and therefore
subject
60-7-201, MCA,
as
our
well as
decision in Ambrogini.
The
court
horse,
district
had determined that the owners ofthe
Workmans,
exclusion,
fell under
statutory
60-7-202(2),
MCA,
provides
that the general proscription
permitting
live
occupy
highways
stock to
such
does not apply
parts
to “the
of fenced
highways adjacent
where
highway
device has not
been installed to
exclude
livestock.” The court concluded that
*21
although the Workmans’ horse had been confined within a fenced
pasture, their ranch
range,”
nevertheless was “open
and therefore
they
prevent
owed no
to
occupying
the horse from
the highway.
Indendi,
67,
See
272
at
randum and
by
Indendi,
order were not substantiated
the record. See
272 Mont. at
P.2d at
We
1088.
concluded that the
ver
directed
dict entered in favor of the Workmans was therefore inappropriate
(2)
pursuant
exception
60-7-202,
because
under subsection
of §
MCA,there
highway
question
fenced,
was no evidence that the
was
adjacent
was,
law,
and that the area
to
highway
as a matter of
open range. Indendi,
69-70,
indicated confine livestock own- legal relationship between strictly to the applies and precedent to establish condition and landowners who wish ers clearly erroneous Based on a necessary trespass action. to sustain Legisla- for that of the again judgment our premise, we substituted exist, statutory duty simply did by inserting ture motor- statutes established establishing that the fence further enacted to supposedly were that the statutes person” ists as a “class protect. MCA, which defines Thus, we conclude that § liability MCA, establish fence,” 80-4-103
“legal §§ any statutory part on the fences, mandate do not for defective
123 animals in this state to livestock owners “fence-in”their or otherwise fences, maintain and thus overrule Indendi v. Workman to the extent 80-4-101, MCA, may it holds that a violation of a for a serve as basis finding negligence regard injury se with to an to a per motorist or passenger traveling Thus, on a highway. Larson-Murphy’s argument fence, to the District Court and here that Zancanella’s which the maintain, Steiners obligated “legally were defective” due to the fact it violated “legal fence statute” is without merit.
V. Livestock highway owner’s common law users at Seemingly odds with the historical common trespass law an strictly rule —that damages owner livestock is liable for caused to another landowner —is the companion historical common law rule that on a highway, animal is not a trespasser, and therefore there is any no liability may strict for harm which it highway cause to other law, users. expressed by Under the common as the House ofLords in a comprehensive 1947 decision:
An underlying principle of highway the law of the is all those lawfully using highway, it, or adjacent land to must show mutual respect and forbearance. The put up motorists must with the farmer’s cattle: the farmer must endure the motorist.
Searle v. Wallbank [1947] 1 L.R.App.Cas. 361 (L. du Parcq, con- curring). Andes, See also at (discussing Mont.L.Rev. “public ways” Keeton, exception); (stating & highway Prosser that on the itself, escaped “even an animal trespasser, a and there is no liability strict may basis”); harm which it do upon that Kend- (Or. Searle). 1960), all v. Curl 230 (citing The common exception law rule involved where the cases animal was known to have dangerous propensity owner trait that was not characteristic of a domestic animal like kind. See & Prosser Keeton, 76.§ Thus, law, may common the one hand a livestock owner a legal duty
have to restrain prevent his livestock to harm his neighbor’s crops, but has no similar to restrain his livestock to prevent “using” highway though them from the animal —even have escaped very prevent restraint intended to harm to the neighbor. This apparent contradiction is reconciled the historical context ofthe common law it developed: as neither cost-efficient fenc- wire, ing such as barbed nor motor vehicles of rural were feature England prior century. fact, system, 20th The rural road de- veloped routinely in correlation to markets where livestock were
herded, was ei- transportation and a rural traveler’s common mode of at Searle, 1 by generally L.RApp.Cas. ther on foot or horse: See 345-353. rule ofcommon foregoing respect The “mutual and forbearance”
¶88 in under its doctrine stat- law was never codified Montana to, utes, any or in clear man- expressed, nor has it been or referenced le- Legislature or this in the context ofthe by ner discussed our Court livestock owners and motorists gal relationship and duties between highways. on Montana clearly contrast, legislatures other western states’ have respective into incorporated this common law rule their
adopted and (stating “[n]o See Idaho Code 25-2118 that range § doctrines. of,any animal controlling possession or domestic person owning, keep to such animal off running open range, on shall have the any damage to any highway range, on such and shall be liable therein, by riding caused a collision injury any person vehicle or for to 568.360(1) animal”); and the Nev. Rev. Stat. § between the vehicle or person, owning, controlling firm or (stating corporation “[n]o running open range has the any in domestic animal possession of on the any highway traversing or located keep to the animal off for dam- corporation no firm or is liable open range, person, such any by colli- ages any property injury person or for caused occurring on such sion a motor vehicle and the animal between 66-7-363(0 “[ojwners of highway’); (providing Ann. N.M.State. § high- or ranging through which unfenced roads pastures livestock injury or dam- ways pass damages shall not liable for reason of be using by collisions of vehicles age persons property or occasioned ranging in said highways and livestock or animals said roads and specific negligence of guilty unless such owner pastures pasture”). in said allowing his animals other than meanwhile, incidentally modified the Legislature, has Our certain “public way” by restricting rule the common law concept of in certain areas that include running large kinds animals from high- animals from certain kinds highways, restricting and from Thus, statutory or modification express we have no affirmation ways. legal re- governing law rule complete abrogation or ofthe common lawful equal, and motorists as between livestock owners lationship highways in Montana. users Montana, addressed, pursuant § previously As statute, law shall
MCA,
declared
common
where the law is not
be the law and rule
the decision. We have also held that the term
body
means “that
of jurisprudence
applied
“commonlaw” also
as
country
the courts ofthis
it
a rule of
up
modified
time became
decision in this commoxweaNh” Aetna Accident & Liab. Co. v. Miller
377,
382,
Furthermore,
Nehring
provides the standard against negligence or due care can be measured: *24 law,
Except provided by everyone as otherwise responsible is only for the results of his willful injury acts but also for an occa- sioned to ordinary another his want of care or skill in the man- agement his property person except or so far as the latter has willfully ordinary or want of care brought injury the him- upon self. (also 1895)
Further, Legislature our in has provided “[ejvery that per- bound, contract, son is without to abstain from injuring person property of another or infringing upon rights.” of his See § 28-1-201, statute, MCA. In the absence of express an it is from these foregoing general rules that the in this instant case must be de- rived. general mind, With these principles we next observe that judicially adopt entirely
we need not
an
new standard to meet the cur
Rather,
rent
our
already
conditions.
case law
provides that where two
parties
right
have
equal
public highway,
to use a
it
each must use
injuriously
so as not to
right,
interfere with the other’s
and each must
a degree
exercise
ofcare
danger
agency
commensurate with the
(1962),
that he himself is
See
v.
using.
Franck Hudson
140 Mont.
484-85,
349, 355, 243, 247; 318 P.2d v. County Fulton Chouteau Farmers’ Co. (1934), 48, 64, 1029-30. See also (stating rights one so own as not
MCA
maxim that
must
use his
another).
infri4ge upon
rights
can
traced to the
foregoing
roots of the
rule in Montana
be
The
country that
at the time
common law in this
existed
mid-1800s
See,
York
R.R.
Territory.
e.g.,
a
Warner v.New
Cent.
Montana became
1866),
grounds
rev’d on other
(N.Y.App.Div.
Co.
45 Barb.
(stating
question
superior,
not a
or subordi
“[i]t
N.Y.465
that
is
right,
damages
which arises in an action for
occa
passing,
nate
a
a
by collision
locomotive on the railroad and vehi
sioned
a
between
merely ofthe exercise of suitable
highway,
question
cle
but a
upon
a common and
prudence, by either
in the exercise of
party
caution and
(Mass. 1848),
right);
v.
& M.R. Co.
ging
“[wjhere
parties
equal
have an
provided that
two
struction which
injuriously
it
as not to
right
public highway,
each must use
so
use
degree
exercise a
right,
the other’s
and each must
interfere with
danger
agency
that he himself
commensurate with the
care
484-85, 373
Franck,
(concluding
P.2d at 953
using.”
adequately
applicable
...
state
“taken as whole
instructions
“[bjoth
law”).
and the motor
In
the railroad
Sztaba we concluded
Sztaba, 147
right
crossing.”
the use of a
ing
equal
have an
public
likewise concluded
Hightower,
Mont. at
spectrum of amici, circumstances. As by observed “open range” en- remote, compasses seldom unpaved highways traveled where no livestock, fences at all heavily restrain as well ás fenced areas tra- versed high levels of traffic on paved roads near population dense centers where customarily have no cause to be herded or otherwise occupy highway grazing for the purpose seeking or water. Accordingly, owed motorists an owner of a black bull,
Angus which is standing in the of highway middle night way, harm’s conceivably may be no different than that owed owner of vehicle permits who his her vehicle to remain in harm’s way in the middle of the highway, same under the same circum instances, stances. In both each right has a highway. use the Yet both must act in a reasonable circumstances, manner under the and failure to do negligence See, so constitute on his or her part. e.g., Mooney (1934), 1, 8, Morton v. 33 P.2d (stating disabled, that if a car becomes “the employ motorist should due dili gence to it highway time, but, remove from the within a reasonable the absence showing diligence, of lack of the mere fact that a disabled car is standing highway on the does not constitute action (Az. negligence”). able Lusby 1990), See also Carrow v.
754 (applying duty ordinary care to livestock stating owners and that “in range territory, the mere failure to one’s prevent cattle from entering highway, by otherwise, erecting fences or does not constitute falling conduct below the required standard of care of live owners”); 1994), stock Shively Dye v. (Cal.Ct.App. Creek Cattle Co. *26 238, 244 duty ordinary care to livestock own (applying
Cal.Rptr.2d law, ‘openrange’ backdrop ofthe stating “against ers and contemplate extreme ordinary in this does not duty of care context measures”). preventive last, turn, foregoing to the is- we now accordance with by parties.
sues raised presented Issues
VI. summary judgment granting err in 1. Did the District Court to Zancanella? 6,1997 Order, Court, January in its dismissed The District he did not on the conclusion that from the action based
Zancanella highway ques- in duty to either the Steiners’ bull off keep have the to the Steiners. tion, property on the leased or maintain fence on the argument primarily on rests Larson-Murphy’s appeal statutory duty to non-delegable that Zancanella had contention Steiners, to the notwith- property fences leased maintain the on above, no Zancanella had standing agreement. lease As discussed fence, pursuant to statutory duty to maintain MCA, fail. argument must and therefore however, theory, Larson-Murphy fur Moving a common-law to 427, 188 900, P. for the (1920), 57 Mont. Fagan ther relies on v.Silver damages for re both be liable proposition that a lessor lessee that, generally, hazard,” and maintaining a “nuisance or sulting from damages suf may be liable for certain circumstances lessors under Contrary activities. result from the lessee’s by party a third fered its con Court, actually authority cite did not to the District which material to the extent that clusions, argument merit in this we find theory dispute. to this remain facts related usually has no con that a lessor of land 103 Zancanella is correct ¶ land upon the leased person or the trol the conduct of the lessee over Therefore, the traditional com is in of it. possession the lessee while anyone to obligation is under no that the lessor mon law rule has been respon keep repair, them in and is or premises to look after for conditions which sible, injured or offthe land persons either trans has been possession after or are created the tenant develop (1976), 171 Mont. Keeton, 63; v. Parrish Witt See Prosser & ferred. exception 741,743 to show 101, 104, 555 (requiring plaintiff 87, 119-20, 190P.2d rule); Emigh v. general Lake agreement in the “absence of rule that (stating general he repair, premises put keep binding the landlord the lease is not liable in do or damages injuries for failure to so for sustained thereof’) omitted). (citations the tenant reason rule, 104 Two exceptions foregoing general relevant which ¶ Larson-Murphy’s alludes, argument expressed two, are under related (Second) sections ofthe Restatement of Torts 379A and §§ *27 persuasive authority we conclude are in this instance. Section 379A a provides subj liability that lessor ofland is physical ect for harm to persons by outside of the land caused of activities the lessee or others on the land possession if, after the lessor transfers but if:
(a) the lessor at the time of the activity lease consented to such or on, knew that it be would carried
(b) the lessor or knew had reason to know that it would unavoid-
ably involve an risk, such or special unreasonable that precautions necessary safety would not be taken. (Second) (1965). Torts,
Restatement of 379A Similarly, pro- § § 837 vides that a lessor of land subject liability is for a nuisance caused by activity upon carried the land while the lease continues and the owner, lessor continues as if the lessor would be if he liable had car- activity himself; ried on the
(a) at the time the lease the activity lessor consents to the knows or has on, reason to know that it will be carried (b)he then knows or should necessarily know that it will involve or is already causing the nuisance. (Second) (1979).
Restatement
of Torts § 837
See also Restatement
(Second)
(1977)
ofProperty, Landlord &
(providing
Tenant 18.4
§
sub
379A).
stantially the same rule as
These
Restatement sections and
interpretive
suggest
where,
case law
that
for
a
example,
land owner
abutting a public highway
knowing
leases the property
it will be used
afor potentially hazardous purpose, and as a result a
traveler
highway injured,
may
subject
liability.
the owner
be
See Restate
(Second)
(Or.
ment
379A,
c; Park
1993),
Torts
comment
v.
Hoffard
852, 855-56
847 P.2d
(holding
may
that landlord
be
for damage
liable
by
dog);
caused
tenant’s
Klimkowski v. De La Torre (Ariz.Ct.App.
1993),
(holding
857 P.2d
knowledge
that if landlord has
nuisance, and
nuisance,
has opportunity to reenter and abate the
he
may be held
if
party
damage
liable
a third
suffers
as a result of the
(S.D.
nuisance);
Wagner
1993),
v.
348, 351(stating
Easson
501 N.W.2d
a
that
damage
landlord
be held
to adjoining property
liable
by
occasioned
tenant’s use of the
property
was sanctioned
landlord,
Everist,
pursuant
theory);
to negligent leasing
v.
Walker
if
1985),
(providing rule that
701 P.2d
(N.M.Ct.App.
Inc.
predictable, it is the
sufficiently substantial and
potential harm is
lessee).
by his
the nuisance created
duty of the lessor
abate
Further,
decision in Criswell v.Brewer
our
relies,
distinguished
can
418, upon
which Zancanella
be
case,
the owner of a
we concluded that
from the facts here.
dog that bit a third
the ranch foreman’s
ranch could
be liable for
“keeper”
dog.
party, concluding that the ranch owner was not
that the ranch owner must still exercise
nevertheless concluded
We
dog
had
The facts indicated that
reasonable care as
landowner.
years
two
before the incident with
approximately
bitten someone
biting, and had sat
ofthe earlier
plaintiff, the ranch owner was aware
dog’s
providing
care
materials
isfied his
reasonable
house,
ranch
and re
dog pen
a fence and
behind the
owner to build
keep
dog
pen
accompanied
unless
quiring that the foreman
Criswell,
419.
the foreman. See
gives rise to
Thus,
against
Zancanella
negligence
the claim
to,
of, or
the ten
of fact: whether he knew
consented
questions
two
he realized the
caused the harm and whether
activity
ant’s
under the
activity.
expected activity
If the
risks associated with
cannot
reasonably
injury, the landlord
anticipated
lease resulted in a
*28
Easson,
(relying
on Restate
liability. See
¶107 lessees, livestock, bulls, kept by his including would be sented that of the lease that Steiners, consequently it a condition the and was fences, precautions were neces- take they maintain the whatever of Zancanella was aware Obviously, animals. sary keeping such bull, livestock, a involved, having kept including risks potential the any dam- Further, in of anticipation on the in the mid-1970s. property carry cause, lia- that the Steiners may required the livestock he ages bility insurance. a Zancanella obligations give such contractual While Steiners, an in conclude that from the we
right to indemnification to Larson-Murphy, party as is not a such jured such party, third liability duty a legal if cannot avoid and thus Zancanella agreement, (Second) 379A, d. Torts, comment of § Restatement was owed. See de unclear, dispute, as what and therefore in Further, facts are addressing whether care in exercised reasonable gree Zancanella activity adjacent a property pose on his would risk to users of fact, argument here, in premised roads. Zancanella’s is notion duty any circumstances, that he owed no ofcare under and this asser- tion formed the ofthe District conclusion. Unless all ma- basis Court’s fully duty undisputedly terial facts show that Zancanella satisfied his ordinary of care under the circumstances as an owner and lessor of summary his premises, judgment improper. in favor Accord- ingly, dismissing the District Court’s ac- order Zancanella tion is reversed. summary
2. err denying judgment Did the District Court to the Steiners? summary The District Court denied the Steiners’ motion for occasions,
judgment on separate two a motion for reconsidera- tion, all which address similar issues law. 29,1996 Order, In the District Court’s October the court deter
mined that open range, “[i]fan area is not is a duty there to maintain legal keep fences and roadways,” pursuant livestock offthe to Indendi v. 60-7-102, Workman MCA. The court stated that whether legal fencing “Defendants violated the statute, and whether such a negligence violation constitutes se per are questions offact.”The court concluded defendants “failed they duty establish lacked to maintain legal keep fences and live stock off Hoskin road.” here,
¶ Pursuant our discussion de we conclude that the nial ofthe defendants’ summary judgment motion for Al proper. was though fence, the Steiners had no to maintain a pursuant MCA, 81-4-201, they had a ex nevertheless common law ercise control their livestock to a particular standard conduct motorists, order to.protect plaintiffs, against as foreseeable unreason able risks of harm under the circumstances —whether a herd within district on open range. See § MCA. undisputed It is that the accident occurred within herd dis-
trict, Therefore, bull, which was in effect at the time. the Steiners’ lawfully “at large,” occupying highway was was not at the accident, time of the highway question “open because was not Thus, range.” question what reasonable standard of care *29 escapes under the circumstances —where an animal pre- owner’s inquiry. in a herd a ac- mises district —is As the court fact-specific knowledged Namely, of those “disputed issues material fact remain.” premises, facts how the and pertaining escaped bull the what taken, taken, light in the risk steps the Steiners had or should have involved, deci- dispute remained in at the time the court rendered its sion. January 6, denying 1997 Order the The District Court’s
¶113 Steiners’ motion to reconsider is affirmed under the same rationale. 19,1997 Finally, again the Court’s November Order District ¶114 legal question on the accident occurred in turned the whether legal duty to whether or not the Steiners owed a range, thus did The concluded that the accident not occur Larson-Murphy. court Ultimately, in this the court’s de- open range. We affirm conclusion. fence disputed nial ofthe Steiners’ motion turned on the fact which the pasture placed the where the Steiners triangular was relevant: bull, Road. or the fence near Hoskin perimeter law, deny- Disregarding again we affirm the order questions Obviously, ing summary judgment. for material the Steiners’ motion maintained, the regarding properly facts which fence was or was not gates and how these conditions relate property, condition the on a required preventing care black bull from ob- the reasonable structing night dispute a herd district remained at highway the time of the court’s decision. grant properly
3. Did the District Court Steiners’motion a directed verdict? review, the evi- Pursuant to our standard of we consider the directed verdict is party against dence introduced whom evidence, light If in a most favorable to granted. when viewed party’s made we will party, pleading, tends to establish the case reverse directed verdict. Here, recovery theory for that the Steiners Larson-Murphy’s (1) theory as follows: at some negligent.
were
This
can be summarized
up to the collision of
point
leading
in the chain of events
8,1993, the
May
bull on
Larson-Murphy’s vehicle with the Steiners’
legal duty
as
to motorists
Steiners —as well
Zancanella —owed
obstructing
prevent
Road to
in some manner the bull from
Hoskin
(2)
their
when
county highway;
the Defendants breached
care
circum
recognized
standard of
under the
conduct fell below
(4)
(3)
accident;
as a
stances;
this breach of a
caused
generally Nehring,
result,
damaged. See
Larson-Murphy was
Mont. at
failing *30 Road, they may be Larson-Murphy’s terfere lawful use ofHoskin with negligence. Larson-Murphy presented liable for We conclude that unlawfully sufficient evidence trial that the Steiners’ bull ob- resulting in structed Hoskin Road and caused the accident her dam- ages, escape that from a of arguably its resulted lack reasonable care its owners. Clearly, therefore, persons reasonable could draw different
¶119 from the evidence concerning conclusions whether the Steiners’ stan- dard ofcare was reasonable under the circumstances. The trier offact determination, should permitted have been to make this ultimate and, accordingly, the verdict in directed favor of the Steiners is re- versed. Therefore, part, this action is affirmed in in part,
¶120 reversed proceedings for opinion. remanded further consistent with this McKEON, JUSTICE LEAPHART and sitting DISTRICT JUDGE for JUSTICE concur. REGNIER
JUSTICE TRIEWEILER concurring. I concur majority opinion, with the except part for that reversed the in holding 64, 899 Indendi v.Workmen that legal violation of fencing requirements Montana’s found at is negligence per § 81-4-101 in the se context of a live stock-motor vehicle collision. The majority legal concludes violation of the fence re-
quirement negligent per was not se in context of a livestock-motor vehicle collision operators because motor vehicle are not of members legal class for which the requirement fence I dis- enacted. agree and majority’s interpretation conclude that the of the statute’s far purpose is too narrow. persons Plaintiffs were within the class of that legal fencing requirements were protect they enacted to because are roaming victims of cattle in an it they area where required be necessary legislature every contained. It is not that the foresee manner in which acts or prohibited injury omissions could cause be- fore negligence as a matter of law can found. be Indendi, As legal stated in the broad of re purpose fence quirement is to assure livestock are "... not free to roam and to persons cause harm to or to with livestock property breed of oth Indendi, ers.” P.2d at 1090. I do not believe it was specific for the necessary legislature type to foresee each harm that wandering negligence livestock could before se principles per cause are applicable. maj ority’s sweeping 124 The conclusion that fences were
¶ keep in is dis- required keep livestock out rather than to livestock 81, Chapter 4, in Part 1. For provisions credited other found Title 81-4-103, MCA, example, provides: any kind
Any person constructing maintaining fence damages action all described 81-4-101 is liable a civil defective injury resulting caused reason to stock such fence. 81-4-104, MCA, that owners wire provides Section of barbed injured disrepair
fences which are are liable to owners Furthermore, thereby, notice, fence repaired. after is not when animals provides penalties liability prohibited Part 2 and civil when *31 81-4-202, provides run at MCA.Part 3 permitted large. are to Section large at in a herd dis- penalties persons for who allow livestock to run statutes, together, These read trict. Section MCA. when clearly fencing was intended suggest legal requirement the fencing roaming from livestock. The protect more than to fenced land live- requirements obviously protect also enacted to others from were law, in by That includes cattle found stock which must be contained. herd districts. protection I the laws from limiting would conclude that to start an ex-
roaming certain classes oftort victims without only by so, ap- is far too narrow an pressed legislature intention the do reasons, these I would legal fencing requirement. the For plication of the context ofthe decision which held that in part followthat Indendi collisions, is provide legal failure to fence of livestock/motor vehicle majority’s I decision to reverse negligence se and dissent the per part holding. the Indendi of joins concurring opinion. foregoing JUSTICE HUNT in the GRAY,dissenting. JUSTICE scholarly sweeping I the respectfully dissent from Court’s take into abrogates precedent of and fails to
decision decades Montana, the Legislature, the like livestock owners of account that the agree I do with some of precedent. have relied on that While long than discussion, my extensive. Rather disagreements are Court’s Re- of in fill an entire volume Montana opinions have the this case however, only major points. I will address ports, Court, myself and the points agreement of between Regarding open the law of the early conclusions that agree I the Court’s with in- term law state and that the range remains the of this highways private by eludes all outside of enclosures used the I by Legislature. agree correctly unless modified the also we public, the held Williams that herd district statutes were intended Finally, that, I protect agree landowners and owners of livestock. resolving the Indendi portions analyzing questions while of 60-7-202, MCA, correct, issue pursuant at 60-7-201 and were §§ negligence per se discussion and therein must be holding overruled legal exclude, confine, were because the fence statutes enacted to livestock. disagree and, therefore, 129 I with dissent from most of the rest
¶ of opinion, regard the Court’s to its approach, with its discussion and its strenuously I particular, disagree result. with the Court’s state early part ment of its that “[t]his Discussion case involves general import misconception ‘open range of Montana’s doc involving trine’ in matters relationship between the owners oflivestock and highways.” users motor vehicles on Montana Under law, decades of is Montana there no “misconception,” since that law clearly has held for decades that-absent an exception enacted Legislature-an prevent owner livestock has no the live See, Bartsch, stock from onto wandering highways. e.g., Montana 409, 427 305; Williams, Mont. at P.2d at reason, 249. For the same I agree cannot with the Court’s statement soon thereafter expression that the District “prevailing Court’s law”in regard Montana with “incorrect.” prevail The ing law was-at time the District Court’s decision-and has been as for decades stated changes, court. That this Court case, the prevailing overruling law decades of prece well-settled dent does not support *32 Court’s statement that the District Court “prevailing erred under law.” disagree I with open range also the Court’s statement that and open range
the
nothing
legal
doctrine has
to with the
relationship
do
between
theory
negli
livestock owners and motorists “under a
of
that,
gence.”The fact is
subject, negli
under our earlier cases on this
theory
gence
in such
only
situations was available
under legislative
See,
exceptions
e.g.,Bartsch,
to the
doctrine.
precedent by characterizing of our statements law in those cases that duty an owner of livestock has no to the wan- prevent livestock from “assumptions.” ap- Such a dering highways on the as mere cavalier inap- is highest the determinations ofMontana’s court proach is, view, starting point in to overrule my and insufficient propriate in body subject rule of of decisions which stated the law this in stability predictability provided Montana for decades and the necessary society. is so in an ordered the law which Moreover, what, me, notice is the clear tie the Court fails to response Legislature’s our cases the reliance on-and between cases; so, Legislature’s law- doing the undercuts the to-those Court authority subject. fact that our Bartsch making on this The dilemma at time when decision addressed the livestock-motorist statutory regard to duty imposed the on livestock owners with willfully intentionally allowing live- highways livestock on There, highways. equivocation stock onto certain we stated without pre- the has no range country, owner of livestock... open no wandering. prevent Since he has vent the livestock to be if the livestock wandering, negligent such he cannot be said wandering highway onto a do if such takes them wander —even right way through open range. runs Bartsch, Recognizing propriety 149 Mont. at P.2d 305. result, in the last about increased motor traffic but concerned con century, specially John C.Harrison third ofthe twentieth Justice subject its “utmost consid curred, urging Legislature give (Harrison, J., Bartsch, 410, 427 P.2d con at 305 eration.” curring). very in the Legislature plea The heeded Justice Harrison’s relating subject. by enacting
next statutes legislative session again 1. The acted Legislature See Ch. Sec. Laws subsequently became vigorously, enacting what more through 60-7-101, MCA, 60-7-101 “Purpose” statement §§ 60-7-103, MCA, intended expressly were and the economic
to balance the tradition for safer livestock with the need problems raising geographic to reduce taking all feasible measures highways policy and the Montana traffic and fatalities on high incidence of accidents highways. bill, Legisla In a separate Ch. Sec. 1.
See 1974 Mont. Laws note, it special Of subject. on the ture amended other statutes also had im previously in Bartsch—which amended the statute referenced *33 posed only willfully intentionally on allowing for livestock “may per certain that the not highways-to provide livestock owner highways by mit” occupation certain livestock. See 1974 Mont. 316, legislative amendment, Laws Ch. Sec. 7. On basis of the this last Ambrogini we in properly decided that livestock owners in Montana merely negligent-rather could be found liable for than willful-con duct presence highways which results the oftheir cattle on certain designated Legislature. the Ambrogini, 197Mont. at at 1018. my clearly It is view that Title the Chapter expresses Leg- in balancing
islature’s intent the modern in an dilemma livestock the competing safety. state with concerns for motorist imposed Certain duties have state been on the of Montana and on my livestock via owners those statutes and it is view the statutes only set the parameters passenger may within which a motorist or allowing sue a owner negligently desig- for livestock the on nated highways. present The facts the do case not fall within those parameters. Legislature having done balancing necessary
¶135 The the it found Bartsch, done appropriate, having response so in there is simply expand no basis for the Court to extend legis careful balancing lative application of to cir apply MCA-to —via Legislature clearly bring cumstances the did not intend to within its purview. short, that, my enacting it is Chapter view Title the Legislature public set ofthis policy forth-as state-the ex ceptions the open range-no duty doctrine available live job agree stock-vehicle collisions. Our is not to decide whether we “ actions; with the our Legislature’s job apply is to ‘construe and [we] law as find it and to as it written integrity maintain its has been ” by a government.’ Raffety coordinate branch of the state v. Kanta Products, 268, 272, Inc. (citationomitted). It is in the case that oc undisputed present the collision county statutory exceptions curred on a road not included within to the Legislature. doctrine forth set Furthermore, conclusory while the Court’s statement exempt herd a par- district statutes authorize certain landowners “to incorrect, open range” altogether ticular area land from I disagree that herd district statutes on livestock-motor ve- impact result, hicle I county disagree collisions roads. As a also with the that, at issue here occurred Court’s conclusion because accident district, open range. it not occur within herd did within reasoning regard The Court’s is that problem with the *34 penalties per- of the for by herd districts are created owners land and trespass a herd mitting large apply only animals to run “within 81-4-301,81-4-306 81-4-307, and district.” See MCA. Herd districts §§ and, therefore, county a adjacent do not include roads thereto live- county road does not oc- simply stock-motor vehicle collision on such early within the Court’s conclusion Consequently, cur the herd district. private of enclosures highways “includes all outside by Legislature-a the conclu- public” and used the unless modified heartily duty with which I here and no agree-remains applicable sion arises. summary, agree In I cannot the decision to simply with Court’s MCA, The
apply the circumstances before us here. statutory ordinary have coex- range-no duty rule the of care years for or more. separately applied-in isted-but been Montana cases, Legislature exceptions general has to the both the enacted exceptions has the statutory rules and this Court such cases applied (absent Nothing infirmity). per- it constitutional in this case before change course, me that ne- especially suades that a one this Court carefully crafted ac- turning cessitates decades of well-settled law head, by the or neces- Legislature appropriate tions on their is either I decision do so. sary. dissent from Court’s matter, As in-and discussed a final I turn issues stated very I from opinion. at the end of-the Court’s dissent the Court’s reso- one, Court’s dismissal of lution of issue which reverses District I do with the Court agree Zancanella action. in this fencing reliance on the statute and Indendi Larson-Murphy’s of this issue-is regard-which argument constitutes the bulk her on authority by Larson-Murphy on is misplaced. The other relied does not on that case to reverse the Fagan properly rely the Court court’s of Zancanella. trial dismissal Indeed, primarily on is based on the Court’s decision this issue (Second) Torts, portions discussion various Restatement however, My problem, is disagree. discussion which I do not with the ar- are limited to Larson-Murphy’s contentions this issue in sup- Restatement law argue set forth above. She did
guments cases based her It is that our decide position. my view port party each has arguments parties, raised so on the issues and opportunity raised brief matters and this Court can make a reasoned accordingly. decision the temptation great
While is often to decide a case on the basis of argument made,” not, that “should have been but was blind-siding very issue we run the real risk ofsubstituting advo- cacy neutrality. 307, 318, 928
State v.Zabawa (Nelson, (Second) J., concurring). Moreover, in relying on the Restatement Torts, the Court shifts thrust of Larson-Murphy’s argu entire ment purported deficiency from the activity of the fence to the Steiners-about which Zancanella knew-of maintaining a bull on the property, with its concomitant risks. It is this sort of “slippery slope” along easy which it is to slide when the Court undertakes to resolve an issue based on an unraised argument. I also dissent from the Court’s conclusion on the second issue
that the District Court properly denied the Steiners’ motion for sum- mary judgment. For the reasons discussed above at some length, it is my view that the Steiners summary were entitled to judgment under the open range-no duty doctrine, legislative in that no exception to *35 applies doctrine here. Because Larson-Murphy’s against case the Steiners should have ended grant with the of their motion for summary judgment, I separately would not address whether the Dis- trict properly granted Court the Steiners’ motion for a directed ver- dict. sum, I agree portions discussion, while with of the Court’s I
dissent from its approach overall and resolution ofthis case the ap- via plication MCA. I would affirm the District Court’s dis- missal of Zancanella from the action and reverse the denial of the Steiners’ summary judgment. motion for
CHIEF joins JUSTICE TURNAGE foregoing dissenting Opinion.