animals at large
According to USDA statistics, there are somewhere around 4 million head of cattle, hogs, sheep, and goats in Ohio. As anyone knows who has been around livestock, a few of those 4 million head are currently outside of their pen or pasture, unbeknownst to their owner. In the legal world, we call these animals “at large.” Inevitably, some of these escaped animals will cause mischief, whether that means ruining a neighbor's crops or damaging a vehicle on a highway. The question becomes: is the owner of the animal liable for the resulting damages?
As with most legal issues, the answer depends on the situation. Ohio law (ORC 951.10) does not automatically make a livestock owner liable any time animals escape. Instead, the law says the owner is liable if they negligently allow livestock to run at large. Importantly, when livestock are found loose, the law initially assumes the owner was negligent unless the owner can prove otherwise. The owner of the animal has an opportunity to rebut, or disprove, the assumption of negligence.
Let’s use the following example to explain:
A farmer owns a herd of beef cattle. During the night, his cattle get out of their pen and wander into a nearby road. A motorist hits one of the cows, causing significant damage to the vehicle.
Because the cattle were out, the presumption is that the farmer was negligent in some way by allowing the cattle to be at large. Thus, the farmer is presumed to be liable for the damage to the car. However, the farmer is able to show video from his security cameras that a trespasser entered onto his property, unchained the gate, and opened the pen during the night. The farmer has strong evidence to rebut the presumption of negligence and will likely not be liable for the damage.
Some other examples of when a livestock owner may be able to rebut the presumption of negligence include:
- A healthy tree is blown over by a thunderstorm onto a fence, allowing livestock to escape.
- A tornado damages a barn, allowing livestock to escape.
- A driver loses control of their vehicle on a public road, crashes through a properly maintained pasture fence, and leaves a gap that allows livestock to escape before the owner can be notified or react.
- A utility worker enters a pasture and fails to properly secure the gate upon leaving.
Because these cases often depend on evidence showing what caused the escape, documentation can be critical. Fortunately, modern technology can help livestock owners prove they exercised ordinary care. Video cameras offer excellent evidence to prove that gates were secured and ordinary care was taken. While covering an entire property is usually not feasible, installing cameras at high-traffic areas or main gates is a good idea. As an added benefit, these systems — which are increasingly affordable and user-friendly — serve as a strong deterrent against theft, trespassing, and property damage.
While Ohio law assumes a livestock owner is liable for damages caused by escapted animals, it also provides the owner an opportunity to rebut that presumption by proving they exercised ordinary care. Overcoming this assumed negligence can be an uphill evidentiary battle, but strategically placed security cameras and modern technology can provide the definitive proof needed to establish a successful legal defense.
Recent collisions involving cattle on Ohio roadways raise the question of who is liable when a farm animal causes a roadway accident? Ohio’s “animals at large law” helps answer that question. It’s an old law that establishes a legal duty for owners and keepers of farm animals to contain their animals. The law states that an owner or keeper shall not permit their animals to run at large “in the public road, highway, street, lane, or alley, or upon unenclosed land.” But as with many laws, the answer to the question of “who’s liable” under the law is “it depends.” Here’s how the law works.
The law applies to both owners and “keepers.” The animals at large law places responsibility on both the owners and the “keepers” of the animals. The reference to “keepers” can expand the duty to someone other than the animal owner. Ohio courts have interpreted the “keeper” language to include a person “who has physical care or charge” of the animal or has “some degree of management, possession, care, custody or control” over the animal. Whether someone is a “keeper” is a fact specific determination made on a case-by-case basis.
Animals that must be contained. Several years ago, Ohio legislators added poultry to the list of animals an owner must prevent from running at large. The full list of animals an owner or keeper must contain now includes horses, mules, cattle, bison, sheep, goats, swine, llamas, alpacas, and poultry.
The law creates both civil and criminal liability. There are two potential outcomes to violating the animals at large law. The first is civil liability for “negligently permitting” animals to run at large. The owner or keeper who does so is responsible for all damages resulting from injury, death, or loss to a person or property caused by the animal. The second is criminal liability. An owner or keeper who “recklessly” permits the animals to run at large can be charged with a fourth degree misdemeanor.
An owner’s negligent conduct creates civil liability. An owner can be liable for “negligently permitting” animals to run at large, but what does “negligently permitting” mean? Courts have answered this question by stating that the law requires “negligent conduct” by the owner or keeper and that failing to exercise “ordinary care” to contain animals would be negligent conduct. As an example, a court determined that an owner who leaned a gate against a barn opening without fastening the gate to the barn or to any fence posts did not exercise ordinary care to contain his cattle. But the law allows an owner to rebut the presumption that the animals were out because of the owner's negligent conduct. An owner can offer proof of “ordinary care” taken to contain the animal, such as maintaining fences, locking gates, or checking animals regularly. If the owner had exercised reasonable care and the animals escaped for other reasons, such as being spooked by a storm or a gate left open by someone else, the owner might not be liable for the animals running at large. Whether the owner or keeper “negligently permitted” the escape would be a fact specific determination, made on a case-by-case basis.
Reckless conduct can result in criminal charges. In the example above, the court determined that the owner who merely leaned a gate up against the barn opening behaved “recklessly.” Legally, recklessness is acting with complete disregard to the consequences. Reckless behavior can lead to a criminal charge against the animal owner, with a maximum jail sentence of 30 days and a fine of up to $250.
Reducing liability risk under the animals at large law
- Regular management practices. In the court cases that apply Ohio’s animals at large law, the owner or keeper’s management practices are critically important to a liability determination. Animal owners and keepers can reduce liability risk by following routine management practices and documenting those practices, which include:
- Regularly checking and maintaining fences.
- Locking gates.
- Inspecting and maintaining stalls and similar enclosures.
- Checking and counting animals regularly, and immediately after a storm or similar event.
- Installing cameras.
- Training employees to follow management practices.
- The fence matters. It's also important to build a sufficient fence. OSU Extension offers helpful resources on fencing in this video on fencing systems by Educator Ted Wiseman and this article on common fencing mistake posted by the OSU Sheep Team. Be aware that another Ohio law requires a new boundary line fence for livestock to be a certain type of fence. Ohio’s “partition fence law” requires a new boundary line fence for containing livestock to be:
“a woven wire fence, either standard or high tensile, with one or two strands of barbed wire located not less than forty-eight inches from the ground or a nonelectric high tensile fence of at least seven strands and that is constructed in accordance with the United States natural resources conservation service conservation practice standard for fences, code 382.” If adjacent owners agree in writing, a new line fence to contain livestock can also be a barbed wire, electric, or live fence.
- Insurance and business entities. Insurance is necessary risk management tool for farm animal owners and keepers. It’s important to review all animals and animal activities with an insurance provider and ensure adequate liability coverage. In some situations, using a separate business entity like a Limited Liability Company might be helpful for liability purposes. Animal owners and keepers should consult with insurance and legal advisors to determine individual insurance and legal needs.
Ohio’s animals at large law is in Ohio Revised Code Chapter 951. Ohio’s partition fence law is in Ohio Revised Code Chapter 971.
Tags: animals at large, line fence, partition fence, fence law
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Bill introduced in Ohio House of Representatives to clarify liability standards
A recurring problem around Ohio may be resolved if H.B. 503 progresses through the General Assembly before the end of the year. Representatives Bubp (R-88th Dist.) and Garrison (D-93rd Dist.) recently introduced the bill to revise Ohio's animals at large law. The proposal clarifies the standards for civil and criminal liability under the law.
The animals running at large law, found in Ohio Revised Code Chapter 951, states that no owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese "shall permit" the animals to run at large on public roads or outside of their enclosures. Many law officers, prosecutors and judges have interpreted the word "shall" as a trigger for automatic liability--if an animal is out, the owner is liable. But in a case before the Ohio Supreme Court, the court stated that the law does not establish automatic liability. The court explained that the law creates the duty to exercise ordinary care to keep animals from running at large and sets up a "rebuttable presumption" of liability. An animal owner whose animals are found running at large has the opportunity to rebut the presumption of liability and prove that he or she exercised ordinary care to contain the animals. Despite the Supreme Court opinion, animal owners have continued to be subject to prosecution under an automatic liability standard.
H.B. 503 removes the possibility of interpreting the animals at large law as a strict liability law and lays out two different standards for civil and criminal liability. An owner or keeper of animals who "negligently" permits animals to run at large is liable for all damages caused by the animal, and an owner or keeper who "recklessly" permits animals to run at large is guilty of a fourth degree criminal misdemeanor. Under Ohio law, "negligence" is the failure to exercise ordinary care, while "recklessness" is acting with indifference to consequences and with disregard to a known risk.
H.B. 503 would alleviate the problems many animal owners in Ohio have faced--potential criminal liability when natural disasters, vandals, pranksters or neighbor disputes, rather than the owner's action or inaction, caused the release of the animals. A disturbing increase in such incidents led the Ohio State Bar Association and its Agricultural Law Committee to work with H.B. 503 sponsors to develop the revisions. View H.B. 503 here.
Tags: animals at large, livestock, livestock liability, livestock running at large
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