Carver v. Ford | Animal Legal & Historical Center

Country of Origin: United States Court Name: Supreme Court of Oklahoma Primary Citation: 591 P.2d 305 (Okla. 1979) Judge Name: Justice Doolin Jurisdiction Level: Oklahoma Judges: C.J. and Irwin V.C.J. and Williams JJ. wrote the opinion. Lavender Barnes concurs in result. Simms and Hargrave Hodges Doolin J. concur. Opala Attorneys: Wendell W. Clark, Clark and Williams, Tulsa, Oklahoma, Curtis A. Parks, Parks and Beard, Tulsa, Oklahoma, for Appellant. Richard D. Gibbon and Joseph F. Clark, Jr., Tulsa, Oklahoma, for Appellee. Docket Num: 50,729

Summary:

The owners rented a stall from the tort victim for their heifer. The heifer escaped into the yard and crashed into a gate whereupon the gate then hit the tort victim in the mouth and broke several teeth. The Supreme Court of Oklahoma held that the heifer was not running at large, that the heifer escaped from its stall through no fault of the owners, that strict liability for trespass under Okla. Stat. tit. 4. sec. 98 (1965) was not applicable, and that any liability of the owners was required to be predicated upon negligence.

Plaintiff brought this action to recover damages for personal injuries claimed to have been caused by defendants' heifer. Defendants rented a stall from plaintiff in which to keep their heifer, with the understanding the heifer was to be confined to the stall or in the pasture at all times. One evening while one defendant was cleaning the stall, the heifer escaped into the yard. In her haste to escape, the heifer crashed into a gate plaintiff was in the process of opening. The gate hit plaintiff in the mouth and he suffered broken teeth and lacerations. This suit followed.

The petition, as amended, made general allegations of negligence on the part of defendants. At trial plaintiff presented evidence of the above recited facts plus additional testimony relating to the extent and severity of his injuries. The trial court sustained defendants' demurrer to plaintiff's evidence and overruled his motion for a new trial. Plaintiff appealed and the Court of Appeals reversed holding the evidence was sufficient to sustain a cause of action in both negligence and trespass. This court granted certiorari under rule 3.13A(1) 12 O.S. 1978 Supp. Ch. 15, App. 3.

Plaintiff argues two points in his appeal: (1) there was sufficient evidence of defendants' negligence to submit to the jury and, (2) recovery in strict liability for trespass by the heifer should have been allowed even without a showing of negligence on the part of defendants.

Ordinarily an unintentional and non-negligent entry on land in the possession of another, or causing a thing to enter the land, does not subject the actor to liability for any harm done unless he is engaged in an abnormally dangerous activity. n1 At common law however, this was not the rule when an animal, permitted to run at large, "broke the close" of another. If the animal did damage to the property or person of the possessor of the land on which the animal was trespassing, an action in aggravated trespass or trespass quare clausum fregit arose against the animal's owner. n2 The owner was liable as though he committed the trespass personally and was held strictly liable without regard to his negligence.