Beverly Garland v. Beaubouef Company, L.L.C., and Republic Fire and Casualty Insurance Company

• Court: Louisiana Court of Appeal
• Decided: September 23, 2020
• Docket: 53,572-CA
• Status: Published

Opinion

Judgment rendered September 23, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 53,572-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

BEVERLY GARLAND Plaintiff-Appellant

versus

BEAUBOUEF COMPANY, Defendant-Appellees L.L.C., AND REPUBLIC FIRE AND CASUALTY INSURANCE COMPANY

Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 79,212

Honorable Charles B. Adams, Judge

DUDLEY DEBOSIER INJURY LAWYERS Counsel for Appellant By: Kristen B. Bernard G. Adam Savoie W. Paul Wilkins

PETTIETTE, ARMAND, DUNKELMAN Counsel for Appellees WOODLEY, BYRD & CROMWELL, LLP By: S. Michael Cooper Chelsey T. Colontonio

Before MOORE, PITMAN, and COX, JJ. MOORE, J.

Beverly Garland appeals a judgment that granted summary judgment

in favor of Beaubouef Co. LLC and its insurer, Republic Fire & Casualty,

dismissing her claims against them, and denied as moot her motion for

partial summary judgment on the issue of liability. For the reasons

expressed, we affirm.

FACTUAL BACKGROUND

Shortly before 3:00 am on Easter Sunday, April 16, 2017, Ms.

Garland was driving south on I-49 in DeSoto Parish. Unfortunately, a black

cow had escaped from a cattle farm to the west of the Interstate, just north of

where it crosses under La. Hwy. 5 (not a freeway exit). Unable to see the

cow in the pitch darkness, she drove straight into it, sustaining serious

injuries. The cow had escaped through a hole in the fence of a pasture

owned by Beaubouef. Beaubouef’s insurance adjuster denied her claim, and

Ms. Garland filed this suit alleging that Beaubouef was not free from

negligence.

Beaubouef admitted that it owned the cow, but showed that two days

before the accident, thieves had cut through the enclosing fence to steal

copper from a cell tower located on the pasture, leaving a breach through

which the animal escaped. The DeSoto Parish Sheriff’s Office (“DPSO”)

had investigated the break-in, and notified Crown Castle, Beaubouef’s

lessee, and AT&T, the sublessee, but no one had ever notified Beaubouef

about it. Within 48 hours of the theft, the cow got out and roamed onto the

Interstate. Beaubouef alleged that DPSO, Crown Castle, AT&T, La. DOTD,

the unknown thieves, and Ms. Garland were comparatively at fault. MOTIONS FOR SUMMARY JUDGMENT

Ms. Garland filed a motion for partial summary judgment urging that

Beaubouef alone was liable for the accident, as Beaubouef breached its duty

to keep its fence in good condition. In support, she offered five depositions,

or portions thereof:

Joe Beaubouef, the LLC’s principal, testified that his property was

fenced in “hog wire,” which was “made of steel” and was “tough,” and no

cow had ever escaped it before; he agreed it was his duty to maintain the

fence. Two days after Ms. Garland’s accident, an agent from the Livestock

Brand Commission told him that on Good Friday morning, somebody broke

into the cell tower to steal copper, and cut the fence, but that was the first

time he (Beaubouef) ever heard of it.

Joe Clark, Beaubouef’s assistant farm manager, testified that every

morning when they go to feed the cattle, they “check” the fences; if they find

a problem, they fix it on the spot. Joe carefully described the cell-tower tract

as a triangle-shaped overflow pasture, fenced on all three sides; they used it

only when the regular pastures were low on grass, and then, never more than

eight days at a time. Joe testified he did not let the cows on the triangle

pasture before the accident, but maybe his brother did.

Bobby Clark, the farm manager and Joe’s brother, admitted they had

let cows into the triangle pasture because they needed more grass. In

response to a question, he agreed that he “inspects” the fence every other

day, and it was fine before he let the cows on the triangle pasture; however,

he could not precisely recall when he did this.

2 Rose Clark, Bobby’s wife, stated that the hole in the fence was big

enough to drive a four-wheeler through, and Trooper Monroe, of DPSO,

testified that the cow belonged to Beaubouef.

Beaubouef then filed its own motion for summary judgment, arguing

that it maintained a perfectly good fence around the triangle pasture; early

on April 14, unknown thieves cut the fence, entered, and stole copper from

the cell tower; AT&T promptly advised Crown Castle and DPSO about the

breach, but nobody ever advised Beaubouef; by the time Beaubouef found

out, it was too late. In support, Beaubouef offered the same depositions as

Ms. Garland, plus two partial depositions:

Randy Stinson, an AT&T lineman, testified that he got the service

ticket from AT&T on April 14, to respond to a copper theft. Finally, George

Drake, another technician,1 testified that vandals cut a six-foot portion of the

lighting cables, which he never reported to Beaubouef.

RULING OF THE DISTRICT COURT

The district court wrote a well-researched, eight-page opinion. It

noted at the outset that the depositions of Beaubouef’s employees were

“inconsistent,” in that Joe said they would check the perimeter fence every

day, if cows were being kept in the triangle, while Bobby said they inspected

the fence by four-wheeler every other day.

The plaintiff was required to show (1) ownership of the cattle, (2) the

highway was one enumerated as a “stock law” highway, and (3) the presence

of cattle on the highway. With this showing the burden shifted to the

defendant to show an independent cause of the harm, such as (1) fortuitous

1 The partial deposition does not show Drake’s precise connection with the case; at oral argument, counsel said he worked for either AT&T or Crown Castle. 3 event, (2) actions of a third party, over which the owner had no control, or

(3) plaintiff fault. La. C.C. art. 2321; La. R.S. 32:263; Chaney v. Vaughn,

51,795 (La. App. 2 Cir. 2/28/18), 245 So. 3d 1208. Further, the owner must

(1) show that he took all reasonable and prudent measures and precautions to

enclose his livestock and (2) explain the presence of the animal on the

highway by showing when, where, and how the animal escaped, i.e.,

“complete freedom from fault.” Hines v. Garrett, 04-0806 (La. 6/25/04),

876 So. 2d 764.

The court found Ms. Garland made her prima facie showing.

However, Beaubouef owed “no obligation of repeated inspection of fence

rows when two days have elapsed” between a repair and an escape, Cornish

v. Ford, Bacon & Davis, 304 So. 2d 361 (La. App. 1 Cir.), writ ref’d, 305

So. 2d 123 (1974). In fact, an inspection “once a week” is “reasonable and

prudent,” Womack v. Rhymes, 300 So. 2d 226 (La. App. 2 Cir.), writ ref’d,

303 So. 2d 179 (1974), and an inspection “before moving the animals into

the enclosure” is reasonably prudent, Arvie v. State Farm, 2013-1096 (La.

App. 3 Cir. 3/26/14), 135 So. 3d 837.

Despite the minor inconsistency between Joe and Bobby Clark’s

testimonies, the court found that these witnesses established reasonable and

prudent measures to enclose their livestock. Even accepting Joe’s comment

that he “checked” the fences each morning, the court found that a company

policy directing more frequent inspections does not supplant the standard of

conduct required under a legal duty, citing Faucheaux v. Terrebonne Consol.

Gov’t, 615 So. 2d 289 (La. 1993).

Finally, the court found that the vandalism to the fence, over which

Beaubouef had no control, supplied the “when, where, and how” of the 4 cow’s presence on the Interstate, and was the sole cause of Ms. Garland’s

damages. The court therefore granted summary judgment in favor of

Beaubouef, and denied Ms. Garland’s motion as moot.

Ms. Garland has appealed, raising two assignments of error.

APPLICABLE LAW

A motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief sought by

a litigant. Murphy v. Savannah, 18-0991 (La. 5/8/19), 282 So. 3d 1034. The

summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of civil actions (except for certain domestic

matters) and is favored in our law. La. C.C.P. art. 966 A(2); Murphy v.

Savannah, supra. A court must grant a motion for summary judgment if,

after an opportunity for adequate discovery, the motion, memorandum, and

supporting documents show that there is no genuine issue as to material fact

and that the mover is entitled to judgment as a matter of law. La. C.C.P. art.

966 A(3); Murphy v. Savannah, supra. The question whether a legal duty is

owed may be decided by summary judgment. Allen v. Lockwood, 14-1724

(La. 2/13/15), 156 So. 3d 650; Passon v. Fields, 50,635 (La. App. 2 Cir.

5/18/16), 196 So. 3d 645.

No person owning livestock, or having it under his care and control,

shall knowingly, willfully, or negligently permit such livestock to go upon

any Louisiana Interstate highway. La. R.S. 32:263 A; Schysm v. Boyd,

45,336 (La. App. 2 Cir. 8/16/10), 47 So. 3d 977, writ denied, 10-2113 (La.

11/19/10), 49 So. 3d 390.

The owner of an animal is answerable for the damage caused by the

animal. However, he is answerable for the damage only upon a showing that 5 he knew or, in the exercise of reasonable care, should have known that his

animal’s behavior would cause damage, that the damage could have been

prevented by the exercise of reasonable care, and that he failed to exercise

such reasonable care. La. C.C. art. 2321; Honeycutt v. State Farm, 39,301

(La. App. 2 Cir. 12/22/04), 890 So. 2d 756, writ denied, 05-1046 (La.

3/24/05), 896 So. 2d 1046.

Under these statutes, when an automobile strikes a horse or cow on a

stock law highway, the burden of proof rests with the owner of the animal to

exculpate himself from even the slightest degree of negligence. Hines v.

Garrett, supra; Chaney v. Vaughn, supra. The courts deem this a

presumption of negligence; to rebut it, the owner must show not only “that

he has taken all reasonable and prudent measures and precautions to enclose

his livestock, but must also explain the presence of the animal on the

highway by showing when, where, and how the animal escaped from its

enclosure, that is, his complete freedom from fault.” Hines v. Garrett,

supra; Chaney v. Vaughn, supra; Arvie v. State Farm, supra.

DISCUSSION

By her first assignment of error, Ms. Garland urges the district court

erred in not finding Beaubouef at fault under Art. 2321. She concedes that

liability under this article has always been subject to a requirement of

knowledge, Kennedy v. Frierson, 142 So. 2d 838 (La. App. 2 Cir. 1962);

Melancon v. Perkins Rowe Assocs., 2016-0219 (La. App. 1 Cir. 12/14/16),

208 So. 3d 925. She shows that the owner must take reasonable measures to

prevent the escape of cattle, Cornish v. Ford, Bacon & Davis, supra. She

contends that Beaubouef’s employees had a duty to inspect the fence at least

once after the theft occurred on Friday morning; had they done so, following 6 the procedure outlined by Joe Clark, they would have uncovered the breach

on Friday and prevented the accident on Sunday. Their failure to do so, she

submits, proves a “slight showing of negligence,” the standard enunciated in

Thomas v. Wright, 75 So. 2d 559 (La. App. 2 Cir. 1954), is equivalent to the

finding of no “proper fencing,” in Chaney v. Vaughn, supra, and warrants a

finding of liability. At oral argument, counsel further suggested that the

existence of a duty, being a mixed question of fact and law, is simply not

suitable for resolution by summary judgment.

Mr. Beaubouef stated that the enclosing fence was hog wire, made of

steel, “tough,” and no cow had ever escaped it; Bobby Clark called it

barbwire; neither he nor his brother noticed anything wrong with the fence

the last time they saw it before the accident. In short, there is not one

scintilla of evidence that this fence was defective, inadequate, or poorly

maintained, as was shown in cases like Kennedy v. Frierson, supra; Chaney

v. Vaughn, supra; Womack v. Rhymes, supra; Quarles v. Tolar, 312 So. 2d

350 (La. App. 2 Cir. 1975); Jamison v. Williamson, 174 So. 2d 285 (La.

App. 2 Cir. 1965); or Stinson v. Robinson, 68 So. 2d 806 (La. App. 2 Cir.

1953). On de novo review, we find no genuine issue of material fact that the

fence surrounding the triangle pasture satisfied “all reasonable and prudent

measures and precautions to enclose” Beaubouef’s livestock, Hines v.

Garrett, supra. We also find that the singular and unforeseeable copper

theft, with the thieves cutting a gaping hole in the fence, conclusively

provides the “when, where, and how” the cow escaped, Hines v. Garrett,

supra.

The issue then becomes whether Beaubouef owed a duty to conduct

more frequent inspections of its fence. Obviously, a daily inspection would 7 have uncovered the breach, the Clarks would have repaired it, and the cow

would not have strayed onto the Interstate and into Ms. Garland’s path.

However, nothing in Louisiana’s jurisprudence imposes a duty on livestock

owners to inspect all their fences every day. This court has previously found

that a once-a-week inspection is reasonable and prudent, Womack v. Rhymes,

supra; another court has found that inspection is required before moving

cattle into an enclosure, Arvie v. State Farm, supra; yet another court has

held that after repairing a damaged fence, the owner has no obligation of

repeated inspection, Cornish v. Ford, Bacon & Davis, supra. Joe Clark

stated that they worked five days a week, but not on weekends; he said they

checked fences daily, but did not recall letting the cows into the triangle

pasture before this accident, so he would not have needed to inspect the

fence. Bobby Clark established that before he let the cows in, the fence was

okay. On de novo review, we find no genuine issue of material fact that

Beaubouef satisfied the duty of adequately inspecting its fences.

Finally, we note that whether a legal duty is owed can be decided on

summary judgment. Allen v. Lockwood, supra; Passon v. Fields, supra.

Duty is a question of law; the inquiry is whether the plaintiff has any law –

statutory, jurisprudential, or arising from general principles of fault – to

support his claim. Hebert v. Rapides Parish Police Jury, 06-2001 (La.

4/11/07), 974 So. 2d 635; Faucheaux v. Terrebonne Consol. Gov’t, supra;

England v. Fifth La. Levee Dist., 49,795 (La. App. 2 Cir. 6/3/15), 167 So. 3d

1105. Some cases have imposed, or considered imposing, a heightened duty

to protect plaintiffs against the criminal conduct of third persons, but this is

premised on a significant showing of prior criminal conduct. Harris v. Pizza

Hut of La., 455 So. 2d 1364 (La. 1984) (finding a heightened duty); Mundy 8 v. Department of Health & Human Res., 620 So. 2d 811 (La. 1993) (finding

no heightened duty). On de novo review, we find nothing in this record that

would create a heightened duty for Beaubouef to inspect his fences every

day. The district court did not err in granting Beaubouef’s motion for

summary judgment.

By her second assignment, Ms. Garland urges the district court erred

in denying her motion for summary judgment. She argues that the defendant

always has the burden of proving comparative fault, Pruitt v. Nale, 45,483

(La. App. 2 Cir. 8/11/10), 46 So. 3d 780; Watson v. Brazeel, 36,499 (La.

App. 2 Cir. 12/18/02), 833 So. 2d 1267, writ denied, 03-0217 (La. 4/4/03),

840 So. 2d 1215. She submits that Beaubouef offered no evidence

whatsoever of plaintiff or third-party fault. In light of our finding that

Beaubouef satisfied its duty of reasonably and prudently enclosing its cattle,

and of adequately inspecting its fences, there is no merit to this assignment.

We would also note that Beaubouef produced compelling evidence that

copper thieves caused the breach in the fence, thus excluding any genuine

issue as to third-party fault.

CONCLUSION

For the reasons expressed, we affirm the summary judgment in favor

of Beaubouef Co. LLC and the denial of Ms. Garland’s motion for partial

summary judgment. All costs are to be paid by Ms. Garland.

AFFIRMED.