Shirley Arvie v. State Farm Fire & Casualty Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1096

SHIRLEY ARVIE

VERSUS

STATE FARM FIRE & CASUALTY COMPANY, ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. 643-11
HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of J. David Painter, Phyllis M. Keaty, and John E. Conery, Judges.

AFFIRMED.

David T. Lawson
Gregory J. Chiartano
Morris Bart, LLC
909 Poydras Street, Suite 2000
New Orleans, Louisiana 70112
(504) 599-3301
Counsel for Plaintiff/Appellant:
Shirley Arvie

Jackson B. Bolinger
John E. Ortego & Associates
Caffery Plaza, Suite 100
4023 Ambassador Caffery Parkway
Lafayette, Louisiana 70503
(337) 988-7240
Counsel for Defendants/Appellees:
State Farm Fire & Casualty Company
Charles Bourgeois

KEATY, Judge.

Plaintiff, Shirley Arvie, appeals the judgment rendered by the trial court in

favor of Defendants, Charles Bourgeois and State Farm Fire & Casualty Company.

For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Arvie was involved in a one-car accident when the vehicle she was operating

struck a cow on Highway 90 in Jefferson Davis Parish. The cow was owned by

Bourgeois, a cattle farmer. Bourgeois maintains several pastures near his home in

Jefferson Davis Parish where he raises cattle. Prior to this accident, numerous

cows had knocked down Bourgeois‟ fence in one of his pastures. The cows

subsequently knocked down a neighbor‟s fence and another fence in a third pasture

that ran along the highway. Arvie subsequently hit one of these escaped cows.

As a result, Arvie suffered bodily injuries and filed suit against Bourgeois

and his insurer, State Farm. Arvie alleged that Bourgeois was negligent in

allowing his livestock to go at large in contravention of La.R.S. 3:2803 and for

failing to take all reasonable and prudent measures and precautions to enclose his

livestock.

Defendants contended that Bourgeois took all reasonable and prudent

measures and precautions to enclose the livestock. Defendants alleged that a

coyote caused the cattle to stampede and destroy the fence surrounding them.

Following a bench trial and after taking the matter under advisement, the

trial court ruled in favor of Bourgeois and found that he did not act unreasonably.

Arvie is now before this court asserting that: (1) the trial court erred by

applying the incorrect standard of law; (2) the trial court erred by finding that

Bourgeois carried his burden of proof to exculpate himself by proving when, where,

and how his livestock escaped his enclosure; (3) the trial court erred by finding that

Bourgeois carried his burden of proof to exculpate himself by proving that he took

reasonable and prudent precautions to enclose his livestock; and (4) the trial court

erred by not awarding special and general damages.

STANDARD OF REVIEW

When a trial court makes an error of law, the appellate court is required,

whenever possible, “to redetermine the facts de novo from the entire record . . . and

render a judgment on the merits.” Luneau v. State ex rel. Dep’t of Transp. and

Dev., 03-1064, p. 8 (La.App. 3 Cir. 6/2/04), 879 So.2d 266, 272 (citing Ferrell v.

Fireman’s Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742). Additionally, an

appellate court “may not set aside a trial court‟s or a jury‟s finding of fact in the

absence of „manifest error‟ or unless it is „clearly wrong.‟” Morrell v. Fisher, 08-

1260, p. 3 (La.App. 3 Cir. 4/1/09), 7 So.3d 1264, 1266 (citing Rosell v. ESCO, 549

So.2d 840, 844 (La.1989)).

DISCUSSION

I. Trial Court’s Application of the Standard of Law

In its Amended Reasons for Ruling (reasons), the trial court ruled in favor of

Bourgeois based on La.Civ.Code 2321, which provides, in pertinent part:

The owner of an animal is answerable for the damage caused by
the animal. However, he is answerable for the damage only upon a
showing that he knew or, in the exercise of reasonable care, should
have known that his animal‟s behavior would cause damage, that the
damage could have been prevented by the exercise of reasonable care,
and that he failed to exercise such reasonable care.

In its reasons, the court further cited La.R.S. 3:2803 which provides, in pertinent

part, that “[n]o person owning livestock shall knowingly, willfully, or negligently

permit his livestock to go at large upon the . . . public highways of this state.”

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The jurisprudence interpreting La.R.S. 3:2803 provides that “[i]t is well

settled that when an automobile strikes a horse or cow in a closed range area, the

burden of proof rests upon the owner of the animal to exculpate himself from „even

the slightest degree of negligence.‟” Morrell, 7 So.3d at 1268 (citing Willis v.

Lecompte, 93-167 (La.App. 3 Cir. 2/9/94), 640 So.2d 304, writ denied, 94-562 (La.

4/22/94), 641 So.2d 203). Under La.R.S. 3:2803, the defendant is presumed

negligent, and he must prove that he had taken reasonable precautions to keep his

livestock in an enclosed area and to prove how the livestock escaped from their

enclosure. Id. To rebut the presumption of negligence, a defendant must not only

show that he has taken all “reasonable and prudent measures and precautions to

enclose his livestock, but must also explain the presence of the animal on the

highway by showing when, where, and how the animal escaped from its enclosure,

that is, his complete freedom from fault.” Young v. Sentry Ins. Co., 315 So.2d 93,

95 (La.App. 3 Cir.), cert. denied, 319 So.2d 419 (La.1975) (citing Womack v.

Rhymes, 300 So.2d 226 (La.App. 2 Cir.), writ denied, 303 So.2d 179 (La.1974)).

“[G]eneral evidence as to reasonable precautions is not sufficient.” Morrell, 7

So.3d at 1266.

Arvie takes issue with the trial court‟s finding that Bourgeois acted as a

“reasonably prudent owner of livestock.” Arvie contends that the foregoing is not

the standard required to rebut the presumption of negligence that arises under

La.R.S. 3:2803. Arvie alleges that there is a difference between acting reasonably

and acting without the slightest degree of fault. Arvie contends that the trial court

allowed Bourgeois to rebut the presumption of negligence with general evidence as

to reasonable precautions, which was not sufficient to rebut said presumption.

Arvie alleges that Bourgeois did not carry his burden of proof as he (1) did not

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prove when, where, and how his livestock escaped its enclosure and (2) failed to

take all reasonable and prudent precautions to enclose his livestock.

In its reasons, the trial court cited the standard discussed above. The trial

court noted that immediately after the accident, Bourgeois inspected the fence and

found a large hole in the fence which was approximately thirty to forty feet across.

The trial court found that based on the evidence, the fence had been pushed down

by cows. It further found that Bourgeois visited his pasture at least every forty-

eight hours, and he did not detect any problems when he was present.

According to the foregoing reasons, “when” the cows escaped is stated by

the trial court as being within the time Bourgeois last visited the cows to feed and

care for them. Bourgeois testified that he visited the cows at least within forty-

eight hours of the accident. “Where” the cows escaped is stated by the trial court

as being the downed fence located on Bourgeois‟ property. This location is

marked on the aerial map of the scene and referred by the trial court as being the

downed fence. The trial court explained “how” the cows escaped by stating that

“many cows pushed their way through the fence.” The trial court noted that

Bourgeois presented compelling evidence indicating that a stampede occurred

which caused the fence to break and the cows to escape onto the highway. The

court found that it was reasonable to conclude that a coyote started the stampede

given the evidence.

According to its reasons, the trial court then discussed the reasonable and

prudent measures taken by the owner and made a specific finding that the

“defendant acted as a reasonably prudent owner of livestock” in his efforts to

inspect and maintain his fence. The trial court noted that Bourgeois testified that

he had moved the cattle to the enclosure a few days before the accident and that

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before moving the animals, he had inspected the entire fence line surrounding the

pasture. The trial court stated that Bourgeois did not find any defects during that

inspection. Instead of the more commonly accepted practice of placing the posts

twelve feet apart, the trial court noted that the surrounding fence had a fence post

placed every six feet. The trial court stated that the fence consisted of four strands

of barbed wire which were routinely used by cattle ranchers in the area. The trial

court indicated that Bourgeois stated that he fed the cattle every other morning and

that there was no indication that there were any problems with the fence when he

last fed the cattle.

Based on the above, the trial court applied the correct standard of law to the

case. The trial court was not erroneous in this regard. Arvie‟s assignment of error

is without merit.

II. When, Where, and How Bourgeois’ Livestock Escaped

Arvie contends that there is no evidence supporting a finding of when, where,

and how Bourgeois‟ livestock escaped its enclosure. In opposition, Defendants

contend that there is evidence supporting a finding of when, where, and how

Bourgeois‟ livestock escaped its enclosure.

With respect to “when,” Bourgeois testified that he was made aware of the

accident at approximately six o‟clock in the morning on the day of the accident.

He testified that he had been to that specific pasture to feed the cows within

twenty-four hours before the accident. When he fed the cattle prior to the incident,

he travelled through a gate, drove his truck into the pasture, and dropped the food

off for the cows. Bourgeois testified that, at that time, the cows were in the small

pasture and that the fencing was fine. From this testimony, Defendants established

that the cows were in the pasture within twenty-four hours before the accident and

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would have escaped between the time when Bourgeois last fed the cows and the

following morning.

With respect to “where,” Bourgeois identified the location of the fencing

that the fifty-three cows knocked down. He identified this location on an aerial

photograph to the trial court. This was examined by the trial court and can be

found in the exhibits. The photograph marks the first of the three fences that the

cows went through as point number one, and Bourgeois pointed this out to the trial

court during his testimony. Bourgeois identified the extent of the opening in the

fence made by the cows, stating that the “posts, the wire, everything, like 50 feet

long” were down on his piece of property.

With respect to “how,” Bourgeois‟ testified that fifty-three cows escaped his

pasture by pushing over fencing that had been in place the day before. Bourgeois

pointed out to the trial court the escaped cows‟ path using a map. Bourgeois

testified that the cows moved first through his fencing surrounding a small pasture

and then through two other fences. Bourgeois testified that the cows each weighed

approximately six hundred pounds. Bourgeois also testified that there had been

problems with coyotes in the area previously and that he had lost cattle as well as

his dog to coyote attacks in the past. Bourgeois testified that he assumed a coyote

most likely made the cows stampede through the gates and onto the highway.

Accordingly, the foregoing evidence supports a finding of when, where, and

how Bourgeois‟ livestock escaped its enclosure. The trial court was not erroneous

in this regard. Arvie‟s assignment of error is without merit.

III. Reasonable and Prudent Measures

Arvie contends that Bourgeois was at fault by failing to show that he had

taken all reasonable and prudent measures to enclose his livestock. In opposition,

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Defendants contend that the evidence shows that Bourgeois had taken all

reasonable and prudent measures to enclose his livestock.

Bourgeois testified that these cows had been weaned from the mothers

approximately five weeks before being moved to this pasture, and he did not feel

that they would be trying to get back to their mothers. Bourgeois testified that this

was a small pasture and that prior to this accident, he had re-enforced the

traditional wooden fence poles with metal poles put in between each wooden post.

Bourgeois testified that the foregoing method exceeded the normal way of spacing

fence posts and provided a well-enclosed pasture for these cows. Bourgeois

testified that these cows had only been in this pasture for about six days before the

accident. Prior to moving the cows to this pasture, Bourgeois testified that he had

inspected the pasture by riding the fence line the day before the cows were moved

and that all fencing looked good. Bourgeois testified that there would have been

no reason for the cows to look elsewhere for food as they were fed every other day.

Bourgeois also testified that he used to shoot coyotes around his property.

Bourgeois testified that he curtailed his shooting after he was warned by the game

warden that he could not hunt coyotes on his property without the proper permit.

Bourgeois testified that getting such a permit was too burdensome. He also

testified that such a permit was not effective as it required an applicant to

specifically describe exactly where the applicant planned to shoot. Bourgeois

testified that he used to have state officers trap coyotes around his property,

although he had not used those trappers for several years prior to the accident

because the trappers were no longer available.

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Based on the foregoing, Bourgeois established that he took all reasonable

and prudent measures to enclose his livestock. The trial court was not erroneous in

this regard. Accordingly, Arvie‟s assignment of error is without merit.

IV. Damages

We will not address this assignment of error given our affirmation of the

trial court‟s ruling.

DECREE

The judgment rendered by the trial court is affirmed. All costs of this appeal

are assessed against Shirley Arvie.

AFFIRMED.

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