RICHARD M. DAVIS, A MINOR, BY .HIS FATHER AND NEXT FRIEND, RICHARD E. DAVIS AND RICHARD E. DAVIS, INDIVIDUALLY, APPELLANTS,
v.
MICHAEL R. JOHNSON, APPELLEE
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A minor passenger injured in a motorcycle-cow collision appeals a summary judgment dismissing his negligence action against the cow's owner. The court reverses, holding that disputed facts about whether the defendant inadequately secured his pasture gate—allowing cattle to escape—preclude summary judgment.
Summary judgment was improper because genuine factual disputes exist regarding whether the defendant inadequately maintained his pasture gate and whether he had reason to anticipate that unauthorized persons would leave it open. The case must proceed to trial for the fact-finder to determine liability.
[1] A landowner may be held liable for injuries caused by a trespasser if the landowner had reason to anticipate the trespasser's conduct and a reasonable opportunity to prev…
[2] Summary judgment is inappropriate when circumstantial evidence allows for an inference of ownership and the defendant's negligence in maintaining fencing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A land owner can be held liable for injuries inflicted by trespassers upon persons outside his premises if he had reason to anticipate that the trespasser would engage in the conduct which caused the injury and thereafter had a reasonable opportunity to prevent or control such conduct.”
Establishes the legal standard for landowner liability based on anticipation and control of third-party conduct.
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Join FLexlaw to unlock all legal intelligenceThe appellant, a minor passenger on a motorcycle, was injured when the motorcycle collided with a cow running at large near the defendant's property. …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appeal is taken in this negligence action from a summary judgment in favor of the defendant-appellee Johnson. We reverse.
The appellant minor, a passenger on a motorcycle, was injured when the motorcycle collided with a cow which was running at large near the defendant’s property. The proof that the defendant owned the cow in question was circumstantial but the lower court conceded that ownership by the defendant could be inferred. The issue on this appeal is whether there are any facts or reasonable inferences therefrom tending to prove that the defendant improperly or inadequately fenced in his cattle, as a result of which they got loose and created the hazard from which appellants’ damages ensued.
At first blush, this case appears to fall within the scope of Gordon v. Sutherland, Fla.App. 3rd, 1961, 131 So. 2d 520, and Lee v. Hinson, Fla.App. 2nd, 1964, 160 So. 2d 166, in that on the night of the accident the defendant’s cattle apparently escaped through a gate which was inexplicably open after the defendant’s caretaker had previously secured it. However, the depositions reveal that neighborhood children and older persons often went in and out of the pasture, perhaps at will, and frequently left the gate open after passing through. The defendant’s cattle had escaped through the open gate on a number of previous occasions.
A land owner can be held liable for injuries inflicted by trespassers upon persons outside his premises if he had reason to anticipate that the trespasser would engage in the conduct which caused the injury and thereafter had a reasonable opportunity to prevent or control such conduct. See 2 Harper and James, The Law of Torts, at page 1526. Cf. DeRyss v. New York Cent. R. Co., 275 N.Y. 85, 9 N.E. 2d 788 (1937).
The facts concerning the continued presence of unauthorized persons and the steps taken by the defendant to prevent the pasture gate from being left open are not sharply focused in the depositions. After the testimony is presented at the trial, the judge will be in a better position to determine whether or not the evidence is sufficient to permit the case to go to the jury.
Accordingly, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.
HOBSON, A. C. J., and McNULTY and GRIMES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Herschel McKINZIE, Jr. v. Hollywood, Inc., 421 So. 2d 606 (Fla. 4th DCA 1982)…tual question is involved. Krieger v. Ocean Properties, Ltd., 387 So. 2d 1012, 1013-14 (Fla. 4th DCA 1980) (citations omitted). Next, we must consider the substantive law governing the plaintiffs’ claim. That law was set forth in Davis v. Johnson, 288 So. 2d 554 (Fla. 2d DCA 1974). The court said that, A land owner can be held liable for injuries inflicted by trespassers upon persons outside his premises if he had reason to anticipate that the trespasser would engage in the conduct which caused the injury…
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Fisel v. Wynns, 650 So. 2d 46 (Fla. 5th DCA 1994)…illfully, carelessly or negligently permitted them to so run at large ... Id. at 167. Again, the court did not discuss the defendant’s liability for the acts of trespassers — perhaps because it was not raised in the pleadings. In Davis v. Johnson, 288 So. 2d 554 (Fla. 2d DCA 1974), the court explicitly considered the owner’s liability for the acts of a trespasser in this type of case for the first time. In distinguishing Gordon and Lee, the court stated: However, the depositions reveal that neighborhood ch…1 / 2
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Leonardi v. Williams, 526 So. 2d 222 (Fla. 4th DCA 1988)…rse the order for summary judgment and the final summary judgment. Genuine issues of material fact remain as to whether the defendants properly secured the cattle enclosure. See Prevatt v. Carter, 315 So. 2d 503 (Fla. 2d DCA 1975); Davis v. Johnson, 288 So. 2d 554 (Fla. 2d DCA 1974). ANSTEAD and GLICKSTEIN, JJ., concur.…
Authorities Cited
- Gordon v. Sutherland, 131 So. 2d 520 (Fla. 3d DCA 1961)
- LEE v. Hinson, 160 So. 2d 166 (Fla. 2d DCA 1964)