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By KARLA POMEROY
Editor
After 37 sheep were killed on Wyoming Highway 30 Sunday, Jan. 15, people began asking the age old question, “who is responsible when livestock are hit?”
“The wind was blowing it was a cold night and those sheep were going with the wind,” Deputy Bob McGuire said of the crash. The sheep were struck by a vehicle driven by Cecil Mullins just after 7 p.m. that night. McGuire said they put about 70 head back into the pasture and did have to open a gate, but added many of the sheep did not go through the gate, rather they went under the fence.
Wyoming Highway Patrol Capt. Len DeClercq said while they never know who pays for what in a car versus livestock crash, he does know sometimes the driver does have to pay and sometimes, if a gate is left open or fences are knocked down, the livestock owner is responsible.
“Wyoming is an open range state and drivers need to be cautious of any possible obstruction in the roadway, whether it’s sheep, cows or deer.”
DeClercq said it is Wyoming Department of Transportation policy for any employee to stop when they see livestock on or near the roadway and either remove the livestock or wait until someone who is authorized comes to remove the “hazard.”
He said in the sheep crash, “the fence appeared to be OK.” He said the right-of-way fences are maintained by WYDOT.
DeClercq said, “If the fences are there it doesn’t guarantee livestock won’t be in the roadway.”
Jim Mitchell, staff counsel for the Wyoming Department of Insurance said a Wyoming Supreme Court case in 2002 helped define open range responsibilities.
“The end result is that in an open range state livestock owners have no additional duties, but at the same time, drivers driving lawfully have no liability just because they hit livestock.
“A driver, if driving in an area that they know livestock are in the area has an extra duty to drive with caution,” Mitchell said.
According to the Supreme Court decision, “However, also relevant to this discussion, the legislature has not provided the livestock owner with a blanket shield from any claims of negligence. For example, no statutes modify the common-law general duty of reasonable care as it pertains to open range pasturing of livestock. Similarly, the old English common law was not an absolute bar to negligence claims. Furthermore, the legality of a particular practice does not, of itself, provide immunity or absolve a person of the duty to act with reasonable care when engaging in the practice.”
After outlining several other court cases and reasonings, the Wyoming Supreme Court wrote, “Those factors, evaluated under the facts of this case (Kathy A. Andersen vs. Two Dot Ranch) as follows, do not support a new duty to prevent livestock from wandering onto unfenced roads in posted open range: (a) A livestock owner, though not constantly supervising his animals, may arguably foresee people could drive their cars in such fashion so as to collide with livestock on posted open range roads. However, the motorists on a posted open range highway, being forewarned, have greater capacity to foresee the potential danger by viewing the road at the exact time in question, to make affirmative choices whether to travel the road despite its open range status, to choose the time of day they will be on the road, and to determine the speed and manner of the operation of their vehicles. In this case, the road was marked by open range signs, and the passenger testified that she and the driver had seen those signs … Cattle naturally grazing in open range pose no greater risk of harm to motorists than indigenous wildlife, such as antelope or deer, which might by happenstance be grazing in the vicinity of the same road.”
It further wrote, “The consequences to the community from the danger of collisions with livestock on open range are no greater than have existed over the past many decades of high speed motorized travel. It is significant that this is the first case of its kind to be considered by this court despite the state’s longstanding open range doctrine and the increase in motor vehicle travel over the years. Statistically, motorist/cow collisions resulting in injuries are not significant in number or percentage of all motorist collisions resulting in injuries. By way of example, in 1999 there were 4,071 motor vehicle accidents resulting in injury and only thirty-seven of these involved a motorist/cow collision. It cannot be discerned from the report how many of these occurred on fenced highways as opposed to posted open range. Wyoming’s Comprehensive Report on Traffic Crashes at 14 (1999). We can safely assume the number of posted open range accidents was less than the total number of thirty-seven. Obviously, in the context of all motor vehicle accidents resulting in injuries, motorist/livestock accidents on posted open range do not present a large or extraordinary risk. On the other hand, the consequences to the community from imposition of an expanded duty could be very great. Such a duty could conceivably eliminate the open range as it has been known in Wyoming since the territorial days and impose additional obstacles to migrating wildlife. It would also extinguish local assessment and control of the open range and roadways as superfluous functions.”
In affirming the lower court’s summary judgment for Two Dot Ranch who had been grazing black Angus that got out on Highway 294, the court wrote, “We have recognized there is a reciprocal and general duty of care owed by livestock owners pasturing animals in posted open range and motorists driving on unfenced highways passing through the open range area. Consistent with our review of the open range doctrine, the applicable statutes, the case law, and the Gates factors, that duty does not require a livestock owner to prevent livestock from wandering onto public highways so long as the area is posted as open range.”
Jimmy Dean Siler, Wyoming Livestock Board law enforcement administrator, said they receive at least a call a week from insurance companies asking who is responsible and what the laws are if livestock get out on the roadway.
Wyoming, he said, is listed as an open range state — fencing sheep in, cattle out and the law makes no mention of horses.
“In my opinion it’s a case-by-case basis. There are a lot of circumstances involved with each crash,” Siler said.
Note: The crash was reported last week in the Basin Republican Rustler and incorrectly reported the number of sheep killed. Sheriff’s Deputy Bob McGuire said about 70 live sheep were removed from the highway and put in a nearby pasture. He said there were 37 sheep that died, including nine that had to be put down. There was one injured sheep that officers left to owner Mark Lyman to determine its fate.
