Summary
In Burnett v. Rice (1988), 39 Ohio St.3d 44, 46, the Supreme Court of Ohio in interpreting R.C. 951.02 held that the statute "* * * creates a rebuttable presumption that the presence of an animal upon a public road was the result of the negligence of the owner [or keeper]."
Summary of this case from Moore v. FerkelOpinion
No. 87-1686
Submitted June 7, 1988 —
Decided October 5, 1988.
Torts — Owner or keeper of cattle not strictly liable under R.C. 951.02 and 951.10 for animal which wanders onto public road.
CERTIFIED by the Court of Appeals for Champaign County, No. 86-CA-13.
On June 25, 1980, Gerald L. Burnett was operating a tank truck containing a load of gasoline on State Route 4 in Champaign County when the vehicle struck a heifer. The impact of the collision apparently caused Burnett to lose control of the truck. The tanker thereafter rolled over and burst into flames. Burnett did not survive the accident. The cow which was struck weighed eight hundred to eight hundred fifty pounds and was approximately twelve to fourteen months of age. The animal was owned by appellee Charles Rice and was pastured upon the land of William E. and Mabel M. Michael. The property upon which the animal was kept was enclosed by a stock fence having a height of fifty-two inches. The fence was augmented by barbed wire suspended above it — extending its height an additional three inches. The construction of the fence conformed to the usual and customary farm enclosures employed in the area. Investigations of the enclosure conducted shortly after the accident disclosed that the fences were in good repair and the gate abutting Route 4 was closed and secured with a chain.
On June 24, 1982, appellant Patricia F. Burnett, as Executrix of the Estate of Gerald Burnett, filed an amended wrongful death action against Charles C. Rice and the Michaels. A jury trial was commenced on September 17, 1986, and concluded September 19, 1986. At the close of the evidence, appellants requested that the court charge the jury on strict liability. The trial court denied the request, and the jury was instructed to consider the evidence in the context of negligence principles. On September 22, 1986, the jury returned a verdict in favor of appellees, finding that appellees were not negligent in failing to prevent the heifer from escaping her confinement.
Appellants appealed the judgment to the court of appeals on October 20, 1986, contending that the trial court erred in failing to instruct the jury on strict liability. On August 11, 1987, the court of appeals affirmed, holding that R.C. 951.02 and 951.10 do not impose strict liability upon owners of animals which escape their confinement and wander onto public roads.
The court of appeals, finding its decision to be in conflict with the decision of the Court of Appeals for Licking County in Nationwide Ins. Co. v. Hankinson (Sept. 27, 1983), No. CA 2972, unreported, certified the record of the case to this court for review and final determination.
Eddie L. Filhart, Hackett Butz and John R. Butz, for appellants.
Miller, Finney Clark and Jerome G. Menz, for appellees.
Appellants contend that R.C. Chapter 951 imposes strict liability upon owners of animals which run at large upon public thoroughfares and whose activities cause damage to others. R.C. 951.02 provides as follows:
"No person, who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese, shall permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land, or cause such animals to be herded, kept, or detained for the purpose of grazing on premises other than those owned or lawfully occupied by the owner or keeper of such animals.
"The running at large of any such animal in or upon any of the places mentioned in this section is prima-facie evidence that it is running at large in violation of this section." (Emphasis added.)
R.C. 951.10 further provides:
"The owner or keeper of an animal described in section[s] 951.01 to 951.02 of the Revised Code, who permits it to run at large in violation of either of such sections, is liable for all damages caused by such animal upon the premises of another without reference to the fence which may enclose such premises." (Emphasis added.)
In Reed v. Molnar (1981), 67 Ohio St.2d 76, 80, 21 O.O. 3d 48, 51, 423 N.E.2d 140, 144, this court observed: "* * * [I]n determining whether R.C. 951.02 was violated, the fact finder must weigh the `reasonableness and correctness' of the owner's `acts and conduct under the proven conditions and circumstances' * * *." Thus, the court in Molnar held that R.C. 951.02 imposes upon the owners of the animals identified in that subsection a duty of ordinary care.
Appellants maintain however that R.C. Chapter 951 has been amended since the decision in Molnar. R.C. 951.09 previously provided, in relevant part, that "[i]t is a sufficient defense to such prosecution [for violation of R.C. 951.02] to show that the animal was at large without the knowledge or fault of its owner or keeper."
While R.C. 951.09 was effective at the time of the decision in Molnar and has since been repealed, its terms were not dispositive of that case. Rather, the focus of the Molnar court was upon the nature of the duty imposed upon the owner or keeper of the animals. In reviewing prior case law, this court arrived at the following conclusion concerning the relationship between a statutorily prescribed duty and the civil liability arising therefrom:
"`Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.' Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, paragraph three of the syllabus. (Emphasis added.) Where a statute imposes a specific requirement or duty, the jury need only determine whether a prohibited act was committed or a required act was omitted, to find the violator of the statute negligent per se. `But where duties are undefined [in the statute], or defined only in abstract or general terms, leaving to the jury the ascertainment and determination of reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the phrase negligence per se has no application.' Swoboda v. Brown (1935), 129 Ohio 512, 523." (Emphasis sic.) Molnar, supra, at 79-80, 21 O.O. 3d at 50-51, 423 N.E.2d at 144.
In applying this rule of statutory construction to R.C. Chapter 951, the Molnar decision is unambiguous in its finding that the section set forth a general requirement that animals be confined, but did not prescribe specific methods by which the confinement was to be accomplished. The determination of the appropriate statutory duty was not derived from an analysis of R.C. 951.09 or 951.10. Rather, such duty arose as a result of R.C. 951.02, which remains unchanged. Secondly, R.C. 951.10 addresses "damages caused by such animal upon the premises of another." (Emphasis added.) Assuming arguendo that such section provides for a strict liability standard, its application would be limited to damages occurring upon the premises of another. It has no application to damages caused by the presence of the animal upon a public highway. Finally, the imposition of strict liability in the case sub judice would conflict directly with the plain language of R.C. 951.02 that "[t]he running at large of any such animal in or upon any of the places mentioned in this section is prima-facie evidence that it is running at large in violation of this section." The "places mentioned" in R.C. 951.02 include "the public road, highway, street, lane, or alley * * *." Thus, in contrast to the language of R.C. 951.10 pertaining to animals which trespass upon the premises of another, R.C. 951.02 creates a rebuttable presumption of negligence when an animal is at large and upon a public thoroughfare.
Consequently, R.C. 951.02 creates a rebuttable presumption that the presence of an animal upon a public road was the result of the negligence of the owner. In the case sub judice, the jury apparently concluded that the presumption was outweighed by evidence that appellees had taken reasonable precautions to prevent the escape of their cattle.
The conclusion reached by the jury and the instructions given thereto by the trial court are wholly consistent with the prior decisions of this court which have held that owners of animals described in R.C. Chapter 951 are under a duty to exercise ordinary care in preventing such animals from running at large upon public roads. See Molnar, supra; Barber v. Kreig (1961), 172 Ohio St. 433, 17 O.O. 2d 379, 178 N.E.2d 170; and Drew v. Gross (1925), 112 Ohio St. 485, 147 N.E. 757.
We therefore hold that the trial court did not err in refusing to instruct the jury that R.C. Chapter 951 imposes a duty of strict liability under such circumstances. The decision of the court of appeals is therefore affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.