Brauner v. Peterson
557 P.2d 359, 16 Wash. App. 531, 1976 Wash. App. LEXIS 1743 (1976)
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Rule of Law:
Under Washington common law, the mere unexplained presence of livestock on a public highway is not sufficient, by itself, to create a permissible inference of negligence on the part of the owner through the doctrine of res ipsa loquitur or otherwise.
Facts:
- On the evening of November 16, 1974, Steven L. Brauner was driving on State Highway 904 in Spokane County.
- Brauner's vehicle collided with a Black Angus cow that was on the highway.
- The cow was owned by Howard Peterson and Jane Doe Peterson and had strayed from their property.
- Brauner did not present any evidence to show how the cow escaped from the Petersons' property.
- Brauner failed to produce competent evidence establishing that the accident occurred in a designated stock-restricted area.
Procedural Posture:
- Steven L. Brauner sued Howard Peterson and Jane Doe Peterson in a state trial court for negligence.
- The case was tried before a judge without a jury.
- At the close of Brauner's case, the Petersons moved for a nonsuit, which the trial court denied.
- The Petersons then rested without presenting any evidence.
- The trial court found in favor of the Petersons and entered a judgment dismissing Brauner's action.
- Brauner (appellant) appealed the judgment of dismissal to the Washington Court of Appeals, with the Petersons as appellees.
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Issue:
Does the mere presence of a defendant's cow on a public highway, without any further evidence explaining how it escaped, create a permissible inference of the owner's negligence?
Opinions:
Majority - Green, J.
No, the mere presence of a defendant's cow on a public highway does not create a permissible inference of the owner's negligence. At common law, an owner of domestic animals has no legal obligation to restrain them from being on a highway unless a statute imposes such a duty. The court rejected the plaintiff's argument for an inference of negligence, finding that the doctrine of res ipsa loquitur does not apply because a cow can escape from adequate enclosures without any negligence on the owner's part. Furthermore, even if res ipsa loquitur did apply, it only creates a permissible inference of negligence, which the trier of fact is not obligated to accept. The court concluded that while the common law rule may be archaic in the context of modern transportation, any change must come from the legislature, not the judiciary.
Analysis:
This decision reaffirms a traditional, landowner-friendly common law rule, placing a high burden of proof on plaintiffs injured by livestock on public roads. By refusing to apply res ipsa loquitur, the court requires plaintiffs to produce specific evidence of the owner's negligence, such as a broken fence or an open gate, which can be difficult to obtain. The court's explicit deference to the legislature signals that any modification of this 'archaic rule' to better protect modern motorists must be accomplished through statutory enactments, not through judicial evolution of common law negligence principles.
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