Summary 2007 WY 69

Summary of Decision issued April 27, 2007

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Case Name: Long v. Daly; Daly and BNSF

Citation: 2007 WY 69

Docket Number: 06-118

Appeal from the District Court of Goshen County, the Honorable Keith G. Kautz, Judge

Representing Appellant (Plaintiff): Frank J. Jones, Wheatland, Wyoming.

Representing Appellees Craig and Sue Daly (Defendants): Patrick J. Murphy of Williams, Porter, Day & Nevile, PC, Casper, Wyoming.

Presenting Appellee BNSF Co: Paul Kapp and Lay Lynn Bestol of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming. Argument by Ms. Bestol.

Issues: Whether there were genuine issues of material fact which preclude the granting of Summary Judgment in favor of Defendants in this negligence case. Whether the Defendant BNSF Co. owes a duty of reasonable care to Plaintiff and did it broach that duty by failing to inspect, repair and maintain its right of way fence.

Facts/Discussion: Long was injured when the vehicle he was driving struck a cow that was lying on the highway. He filed a complaint for negligence against Craig and Sue Daly, the owners of the cow and the property from which it escaped, and BNSF, the owner of the railroad track located between the Dalys’ pasture and the highway.
Standard of Review: When reviewing an order granting summary judgment, the Court considers the record de novo. To maintain a claim of negligence, a plaintiff must prove: the defendant owed the plaintiff a duty of reasonable care, the defendant breached the duty and the defendant’s breach was the proximate cause of injury or loss.
BNSF Duty of Care: Long claimed BNSF owed a duty of care based on Wyo. Stat. Ann. § 37-9-304(a). The purpose of the statute was to protect the livestock owner from harm to their livestock. The Court noted that Long did not fall into the class of persons whose interest the statute was intended to protect. Therefore, they declined to hold that the statute imposed a duty of care on BNSF. The district court correctly concluded BNSF owed no duty to Long and summary judgment was proper.
Summary Judgment for the Dalys: The dispute on appeal was not over the applicable law and whether the district court correctly applied it. In order to establish negligence on the part of a livestock owner, evidence must be presented showing how the livestock got onto the road and that the owner, by failing to exercise reasonable care, permitted that to happen. The Dalys presented detailed affirmative evidence showing that the section of fence from which the cattle escaped was carefully and soundly built. The Court agreed with the district court’s conclusion that the Dalys had made a prima facie showing that they exercised due care in constructing and maintaining their fence. The burden then shifted to Long. His evidence was insufficient to satisfy his burden because it was speculative and focused mostly on a section of fence that did not belong to the Dalys and over which they had no duty of care.

Holding: Long did not fall into the class of persons that Wyo. Stat. Ann. § 37-9-304(a) was intended to protect, so BNSF owed no duty to Long and summary judgment was proper. The Dalys presented evidence which the district court concluded shifted the burden to Long. The evidence provided by Long to refute the showing was insufficient to satisfy his burden. The Court held the summary judgment was proper.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2kob3g .