FRANK A. HANSON, APPELLANT,
v.
JOHN H. SCHARBER AND CECELIA GUDE SCHARBER, APPELLEES
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In this negligence action arising from a motor vehicle collision with a bull on a public road, the court reversed a summary judgment for the defendant property owners, holding that the use of a legally-compliant fence does not automatically shield livestock owners from liability under Florida's open-range statutes, and that a genuine issue of material fact remains as to whether the fence was adequate to restrain the particular animal.
The court held that the mere use of a legal fence does not equate to full compliance with chapter 588 and does not automatically shield an owner from negligence liability. A genuine issue of material fact exists as to whether the fence was adequate for its intended purpose—the restraint of an 1,600-pound bull with known propensities—and summary judgment was therefore improper.
[1] An owner of livestock is liable for damages if they intentionally, willfully, carelessly, or negligently permit livestock to stray upon public roads.
[2] The mere use of a "legal fence" does not automatically equate to full compliance with statutory duties regarding livestock containment.
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Join FLexlaw to unlock all legal intelligence“No owner shall permit livestock to run at large on or stray upon the public roads of this state.”
Establishes the statutory duty imposed on livestock owners under section 588.14.
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Join FLexlaw to unlock all legal intelligenceFrank Hanson struck a 1,600-pound bull while driving on Darby Road in Pasco County. The bull belonged to John and Cecelia Scharber and had escaped fro…
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PATTERSON, Chief Judge.
Frank Hanson appeals from a final summary judgment in favor of John and Cecelia Scharber in this negligence action regarding a bull which strayed onto a public road. We reverse and remand for further proceedings.
In his complaint, Hanson alleged that while driving his motor vehicle on Darby Road in Pasco County, he struck a bull which the Scharbers had negligently allowed to stray onto the roadway in violation of section 588.15, Florida Statutes (1995). After limited discovery, the Schar-bers moved for summary judgment, asserting there was no evidence of negligence on their part and that the bull had been confined to its pasture by a “legal fence” as defined by section 588.011, Florida Statutes (1995).
Prior to 1949, Florida was an “open range” state where livestock were permitted to roam freely. The “open range” ended in 1949 with the passage of the Warren Act, chapter 588, Florida Statutes. See generally Fisel v. Wynns, 667 So. 2d 761 (Fla.1996). The pertinent sections of chapter 588, Florida Statutes (1995), which apply here are:
588.14 Duty of owner. — No owner shall permit livestock to run at large on or stray upon the public roads of this state.
588.15 Liability of owner. — Every owner of livestock who intentionally, willfully, carelessly, or negligently suffers or permits such livestock to run at large upon or stray upon the public roads of this state shall be liable in damages for all injury and property damage sustained by any person by reason thereof.
Sections 588.01 and 588.011 define the requirements of “general” and “legal” fences. The Scharbers fence is a legal fence as defined in section 588.011. It is their position that the enclosure of their property with a legal fence provides them a grant of immunity under the facts of this ease.
In summary, the 1,600 pound bull simply pushed a section of the fence down and escaped. The Scharbers had experienced no prior escapes and inspected the fence on a regular basis. There is no evidence that the fence was not properly maintained. However, we find no authority for the proposition that the mere use of a legal fence equates to full compliance with chapter 588 and reject that position. See Zuppardo v. O’Hare, 487 So. 2d 39 (Fla. 2d DCA 1986). The issue is whether the bull’s escape was the result of the Scharbers’ negligence. The trial court concluded that there was no evidence of negligence and granted the motion for summary judgment.
In his deposition, Mr. Scharber theorized as to how the bull escaped:
Apparently [the bull] got up to the fence and put his head over or just — or something like that. And I guess a staple came loose, and being a bull he just went over. I guess he put his weight on it, and it had come loose and he commenced to meshing [sic] down the fence and went on being a bull.
Mr. Scharber demonstrates a knowledge of the propensity of bulls. We conclude that an issue of material fact remains as to whether the fence was adequate for its intended purpose — the restraint of an 1,600 pound bull which makes up its mind to wander off. Therefore, we reverse the final summary judgment and remand for further proceedings.
Reversed and remanded.
THREADGILL and CASANUEVA, JJ„ Concur.
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Citator
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Manfre v. Shinkle, 184 So. 3d 641 (Fla. 5th DCA 2016)…ns of the State....” Id. at 685. When the Legislature enacted the Warren Act, it intended to eliminate the open range laws and provide “a statewide scheme, for keeping livestock off the roads.” Fisel, 667 So. 2d at 763; see also Hanson v. Scharber, 749 So. 2d 563, 563 (Fla. 2d DCA 2000). The court in Selby explained that in implementing this scheme,. “[t]he Warren Act has delegated, responsibilities and rights among livestock owners and motorists consistent within the goals of promoting the safety of highway…
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The Fla. Bd. OF Educ. v. Andrews, 903 So. 2d 1048 (Fla. 1st DCA 2005)…error by instructing the jury that the defendant’s alleged failure to comply with section 588.01, Florida Statutes, could be considered as evidence of the defendant’s negligence under section 588.15, Florida Statutes (1999). See Hanson v. Scharber, 749 So. 2d 563, 564 (Fla. 2d DCA 2000) (holding that an issue of material fact remained as to whether livestock owners had constructed an adequate fence to restrain a bull, even though the owners had complied with the fencing requirements in chapter 588); Zuppardo…
Authorities Cited
- Fisel v. Wynns, 667 So. 2d 761 (Fla. 1996)
- Zuppardo v. O'Hare, 487 So. 2d 39 (Fla. 2d DCA 1986)