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Category Archives: agriculture

Owner of philandering bull strictly liable but comparatively at fault for neighbor’s injuries


When Taylor’s bull crossed the fence, attracted by Coble’s heifers, Coble hopped on his ATV. The bull charged and the ATV flipped. The bull mounted–not the heifer–but the ATV, pinning Coble, who was seriously injured. In Coble v. Taylor, the Missouri of Appeals for the Southern District reviewed Missouri’s fencing laws to affirm that Taylor was liable for Coble’s injuries resulting from his attempt to drive the bull back home. The jury awarded damages for Coble’s injuries; however, the damage award was reduced, based on the jury finding that Taylor was 65% at fault and Coble was 35% at fault.

Under Missouri’s fencing laws, particularly section 272.030, an owner of livestock is liable for damages sustained if his animal trespasses by breaching a lawful fence.

Taylor (the owner of the bull) argued that the fence was not an “exterior” fence (one along a public road, not a fence that separates the land of two different owners), but a partition fence, and therefore was not the kind of fence that section 272.030 referred to. The appellate court stated that section 272.030 was a modern statute that didn’t follow the old common law that limited the livestock owner’s liability to injuries resulting only breaches of exterior fences, which was related to the 19th century concept of fencing out free-ranging animals, rather than fencing them in.

Taylor also argued that the he and his wife should not be strictly liable for injuries resulting from animal trespass, so that they should not be liable for injuries caused by Coble flipping his ATV. “Strict liability” essentially means liability without regard to the actions of the person who was injured. The appeals court reviewed the Restatement (Second) of Torts, section 518, which is a distillation of appellate court decisions of state and federal courts, with commentary, to find that “any trespassing bull may be expected to attack and gore any other animal or any person who gets in his way.” Thus it is reasonable to expect that people will try to control the bull and get hurt doing so, and the owner of the bull should be liable.

Coble argued that the jury should not have been instructed to determine that he was partly at fault for the way he drove the ATV, which led the jury to only compensate him for only 65% of the damages that he proved. The appeals court said that the jury was properly instructed to apply Missouri’s comparative fault statute, because the Missouri Supreme Court has determined that the legislature intended for comparative fault to be applied whenever possible (other than cases of intentional injury), even though the idea of strict liability and comparative fault seem incompatible.

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Missouri governor signs HB1103, giving courts power to order maintenance of “private roads”


The Missouri General Assembly enacted HB 1103 in the past 2012 regular session, which explicitly grants circuit court judges the authority to impose financial responsibility for maintenance of certain “private roads” onto parcels of real estate that benefit from these roads. Governor Nixon signed the bill into law on July 12, 2012. There are many problems with rural roads in Missouri. Simple questions–such as determining who owns the road, whether it is a subject to property taxes, who has the right to use it, and who is obligated to pay for its maintenance–are often impossible to answer. HB 1103’s provisions regarding private road maintenance change section 228.368 RSMo and add three new sections to Chapter 228 of the Revised Statutes of Missouri. This legislation is an attempt to solve the problem of nobody stepping forward to pay for road maintenance in situations in which no provision was made when the road was created. But its definition of “private road” greatly limits its applicability. According to the new section 228.341, a “private road” means “any private road established under this chapter or any easement of access, regardless of who created, which provides a means of ingress and egress by motor vehicle for any owner or owners of residences from such homes to a public road. A public road does not include any road owned by the United States or any agency or instrumentality thereof, or the state of Missouri, or any county, municipality, political subdivision, special district, instrumentality, or agency of the state of Missouri.” Got that? Read the rest of this entry

Pondering intentional flooding: why are we in this mess?

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The random aspect of tornado damage is one thing. But people have put themselves in the paths of floodwaters. Now the Missouri River’s flood is moving downstream. Who knows what it will do to the Mississippi?

But can you blame people for building homes and businesses in the floodplains? We spent billions to control our rivers and create an economy that depends on our controlling them.

Have we lost the ability to manage our environment, or we were just kidding ourselves that our engineering ability (incorporating politically-mandated compromises) would be effective?

I ponder these things in a longish essay: Unnatural disasters: flooding from managed rivers and what to do. Of course, I don’t know what to do. Maybe you have an idea.

Please read and comment.

Goats have it made, but for the fence

Goats have it made, but for the fence

A beautiful spring day in southern Christian County, Missouri, with dogwoods in bloom. I hope you weren’t working on your taxes.

Missouri hog farm flunks smell test, must pay $11 million to neighbors


I’ve heard that the vows of many vegetarians have been temporarily broken by the craving induced by the smell of bacon being cooked over a campfire.

But the process of creating bacon, ham and pork chops can create such awful odors that a Missouri jury awarded $11 million to those who could not escape the smell of hog farm effluent applied to neighboring fields.

Premium Standard Farms operates several hog farms in northern Missouri, where sparse population and proximity to feed grains hold costs down. These confinement feeding operations (CAFOs) produce lots of pork and staggering amounts of pungent effluent (urine and feces). PSF disposes of the effluent by tilling the fields around its hog houses and spraying the effluent into the air over the loosened soil. While the effluent is being sprayed (as much as 300 feet into the air) and as it soaks into the soil, it releases foul odors.

In one of many suits against PSF, sixty-one neighboring property owners sued PSF and its affilliates in 2002  for damages resulting from the bad smells wafting from PSF’s effluent application over an 11-year period ending in 2010. After much pretrial wrangling, with the plaintiffs being split up into groups based on distance from the hog farm, a four-week trial was held in Kansas City, and fifteen plaintiffs were awarded just over $11 million in compensatory damages.

The claims were made under the legal theory of temporary nuisance, which allows damages to be awarded if the plaintiffs can prove that the use of the defendant’s property was detrimental to the plaintiffs’ use and enjoyment of the plaintiffs’ properties. Plaintiffs are not required to prove that their property values were permanently diminished by the nuisance, only that their use and enjoyment of their properties were harmed during the time of the nuisance.

PSF appealed the jury verdict, claiming six different errors, a couple of which are interesting. The Western District of the Missouri Court of Appeals rejected all six. PSF’s most interesting arguments are:

  • owners of unoccupied farmland are not entitled to recover in a temporary nuisance suit because of their business use of their property.
  • the only measure of damages for loss of use of business property is the loss of  property value during the period of the nuisance, rather than whatever a jury thinks would compensate the owner for unreasonable interference with the use and enjoyment of the owner’s property.

The law of nuisance grew out of the common law. For nearly 150 years, law students have been told about Rylands v. Fletcher, an 1868 decision of an English court that changed the law of nuisance by establishing strict liability of those who produce or harbor dangerous or noxious substances on their land. Those who have the bad stuff on their land can be liable to their neighbors if the bad stuff escapes, regardless of whether the escape of the bad stuff happened as a result of negligence.

State legislatures don’t like to adopt regulations that create liability for those who create lots of jobs and tax revenues, so it remains the job of judges and juries to fashion remedies for dealing with some kinds of pollution. The Court of Appeals rejected PSF’s analysis of case law, concluding

there is no persuasive reason that land used for business purposes could not support an award for the loss of the use and enjoyment of such property by the business owner…We refuse to say as a matter of law that the owners of farmland are not entitled to the reasonable use and enjoyment of that land merely because business activities are conducted on it.

CAFOs provide markets for feed grains raised by neighboring farmers. That’s why many CAFOs are located in areas of fertile soil and ample water. Neighbors to a CAFO are likely to be substantial farmers, some of whom produce grains that feed the CAFO’s poultry, cattle or hogs. Many of their farms are large and highly mechanized and often owned by farming corporations or limited liability companies. CAFOs support local economies, generating tax revenues, income and jobs, keeping alive communities that would otherwise continue to wither.

CAFOs also consume huge amounts of water that becomes effluent, the smell of which can make it impossible to be outside during and shortly after it is applied to fields. Under Missouri law, users of private wells pay nothing for the withdrawn water, even though the withdrawals deplete shared acquifers. In other words, CAFO operators, like other businesses, don’t want to bear all the costs of their activities, hoping that these costs can be spread over the larger community. The judicial system, applying the common law, still allows juries to force polluters to bear more of their social costs than the polluters would voluntarily accept.

Pen-raised whitetail deer are domestic animals, under Missouri law


If a court told me that I had to kill my dog for killing a deer, I’d be upset. But it could happen.

When a dog kills or maims a “domestic animal” in Missouri,  the statutory penalties (section 273.020 RSMo) are harsh. The owner or keeper of the bad dog is liable for the full amount of monetary damages and is obligated to kill the bad dog. But can whitetail deer be considered domestic animals?

Three dogs, alleged to have been owned by Lange, broke into Oak Creek’s pen and killed 21 bucks, does and fawns, all hand-raised and kept for the ultimate purpose of creating bucks with massive racks. When Oak Creek sued Lange, Lange asked the court to rule, in a motion for summary judgment, that the words “sheep and other domestic animals” in section 273.020 applied to livestock typically raised on farms, such as cattle, swine, chickens and horses.

The Missouri court of appeals in Oak Creek Whitetail Ranch v. Lange disagreed with the Osage County trial judge, looking to a dictionary definition, which included the phrase “which have been domesticated by man so as to live and breed in a tame condition.” The court of appeals noted that the slain deer had never been in the wild, but “were all penned and hand-fed, raised in an environment that did not allow them to move freely beyond their confined area.”  The court’s logic is apparently that whether an animal (other than a sheep) is domestic is determined by the individual animal’s status, not the species. Oak Creek’s deer were apparently defenseless in their confinement, unable to flee and perhaps unable to survive in the wild. Cats, dogs and hogs often become feral, regardless of their previous condition of confinement.

The offspring of breeding stock, such as those killed in Oak Creek’s pen, are apparently not domestic animals when placed on game ranches to be killed by trophy-seeking hunters, who pay handsomely for the privilege of slaughtering them. You can see an example of the ideal rack on the Farming for Wildlife website.

Horse on the highway! Who is liable?


Barker’s horse bolted through an open gate on Matchett’s farm and ran onto the highway. A car hit the horse, then careened into Gromer’s car, injuring Gromer, who filed a lawsuit in Butler County, Missouri.

Gromer settled with the other driver and Barker before the trial. Then Gromer convinced a jury that Matchett should be at least partly responsible. He owned the farm with the open gate where Barker boarded his horse.

Missouri’s Stock Law, section 270.101 RSMo, makes a person whose livestock gets onto a highway responsible for Read the rest of this entry

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