If a car hits livestock, who pays for damages isn’t clear cut

KELOLAND.com Original
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SIOUX FALLS, S.D. (KELO) — South Dakota repealed its open range laws in 1980 so cattle aren’t allowed to roam freely without fences.

But what happens when a vehicle collides with livestock that broke through a fence or left a pen through an open gate? Who is responsible to pay for any damages?

“Liability would be determined on a case-by-case situation,” Carolyn Hofer, an executive vice president of the Independent Insurance Agents of South Dakota, said.

About 90 cattle went through a fence or open gate and caused several traffic crashes and thousands of dollars in damages on Oct. 16 in Brookings County, the county sheriff’s office wrote on its Facebook page.

The sheriff’s office said the cattle had been in a pen and some entered Interstate 29 through an open gate. They were standing on the roadway or in the ditch.

Eleven cattle were hit on Interstate 29 and one other was hit on 471st Avenue and 200th Street, the sheriff’s office said on Facebook.

South Dakota does require fencing along highways, said Tim Bormann of the South Dakota Attorney General’s Office.

The condition of fencing can be a factor in being held liable.

“If the owner of the cattle has a history of not keeping fences in good repair, he may very likely be held liable for any damage or injury.  On the other hand, cattle can be very unpredictable and easily spooked by wild animals, foreign objects blowing through the field, etc.,” Hofer said. “If they broke out unexpectedly and the owner acted responsibly in his upkeep of fencing and checking on his cattle, the outcome would most likely be different.  Circumstances surrounding the incident will have an impact on the outcome.” 

Individual counties may have ordinances about livestock at large or nuisance livestock.

Brookings County has a livestock at large section in its public nuisance ordinance.

The ordinance requires those who own livestock or those in charge of livestock to ensure that livestock are confined to property. If an owner or caretaker has three incidents of livestock at large in 12 consecutive months, it shall be considered a public nuisance.

The Brookings County ordinance defines livestock at large as livestock in any public roadway, right of way or property other than owned by the livestock owner or caretaker or leased by the owner or caretaker for the care of livestock.

The Brookings County Sheriff did not respond to KELOLAND’s phone messages as to any citations or related actions in the Oct. 16 incident.

The term open range may be used when it comes to vehicle and cattle collisions on South Dakota roads, former South Dakota Attorney General Marty Jackley wrote in an information piece.

“Many times these situations end up in court and then it would be up to the jury,” Hofer said.

Jury or court cases were cited by Jackley in his information piece about collisions and open range. Agriculture publications and agriculture law publications also cite those cases when they address open range and liability issues in South Dakota.

Three court cases were cited as sources when Jackley wrote his information piece about open range and related tops. Agriculture publications and agriculture law publications also cite those cases when they address open range and liability issues in South Dakota.

In Eixenberger vs. Belle Fourche Livestock Exchange, et. all, a jury had found in Eixenberger’s favor for damages as the result of a collision on U.S. Highway 212 between an automobile driven by plaintiff and two horses belonging to the partnership. The case was appealed and the state Supreme Court ruled that “the verdict is supported by substantial credible evidence. Therefore we have concluded that the circuit court erred in setting aside the verdict and entering judgment for defendant.”

“The issue of whether the farmer or rancher is liable for damages caused by cattle on the road is dependent on the type of road, the kind of traffic, and whether the farmer or rancher knew the livestock were likely to be on the road,” Jackley wrote from his sources which were the cases of Adkins v. Stratmeyer 1999 SD 131, 600 NW2d 891;Eixenberger vs. Belle Fourche Livestock Exchange, et. all from 1953.

Although the state repealed open range laws in 1980, there are some open range areas in U.S. Forest Service areas, primarily in the Black Hills, Bormann said.

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