Many may believe that when a horse, cow, or the like are found running at large on a public road and cause an accident, that the owner is strictly liable. That is not true. The injured party still must prove the owner or “keeper” of the animal was negligent. In other words, the owner or keeper did not maintain a fence or enclosure, which an ordinarily prudent person would have under like circumstances.
The injured party must prove the owner or keeper of the animal was negligent
An owner of an animal is self-explanatory. A keeper of the animal may be different than the owner or the same person. A keeper could be the property owner who houses the animal and maintains the fence enclosure. It will be case specific.
To establish negligence, the injured party should begin their investigation by asking the following questions:
- Was there a fence or enclosure at the time?
- What is the condition of the fence?
- Was the fence sufficient to enclose that particular animal and prevent it from escaping?
- Were there prior instances of animals escaping and under what circumstances?
- Were the circumstances similar to this instance?
- Was the owner or keeper aware of the prior instances?
Prevailing on a claim for property damage and/or injury resulting from an animal running at large can be difficult. The owner and keeper will likely testify that the fence was sufficient and was without prior instances. The injured party will strengthen its chances to prevail if they have photographs of the fence or enclosure at the time of the incident and/or can provide detailed testimony about its condition. If possible, the injured party or insurer must take good photos of the fence. However, the injured party should not trespass on the owner’s property for the sake of good photos.
Did the owner or keeper maintain a fence or enclosure
Hopefully, this article will assist investigating this type of claim to determine if there is subrogation potential and how to go about prevailing on a claim against the owner and/or keep of the animal. If you have questions or would like to discuss a similar matter, contact an attorney with our property subrogation practice.