Would it shock you if I said maybe not? Usually when you are not at fault for an incident, and the incident would not have occurred unless there was negligence, the other party has the burden of explaining why they are not liable, or they must pay the damages. In our example, you clearly did nothing to let a horse on the roadway. Normally the owner would have the burden of explaining why the horse got out, and the explanation must be a good justification why you did not cause this dangerous condition. Historically, California protected cow and horse owners by passing laws that limited their liability for animals that would stray onto highways or roadways. The State wanted to encourage open range grazing and beef and horse husbandry and therefore balanced the protection of horse and cow owners with the advancement of travel by car. While an animal owner could be liable, there was "no presumption of negligence" just because a horse or cow strayed onto the roadway. The common sense method of establishing liability for negligence was taken from the driver. This common sense law balanced the reality that as long as we were encouraging cows and horses to graze openly, we would only hold horse and cow owners liable if the motorist could prove the owner did not act reasonably in caring for and keeping their animals. "Reasonable" did not include fencing in of animals. Thus, cattle or horses often wandered onto rural roads, and most drivers kept a close eye while driving in these areas. As we have become urbanized, freeways are fenced in, high speed travel is the norm, and in cities it is very rare to see a cow or horse on a roadway, and never on a freeway in my 54 years. With the continued sprawl of society into more and more congested suburbs, cow and horse ranches have recognized the need to protect their investment and also the community. Therefore, ranchers have fenced in their properties and moved further from "the city." Fencing is now the norm, and restricting wandering animals, a necessity. Unfortunately the laws of California have not kept up with urbanization and progress when horses and cattle do wander onto a congested freeway. One such freeway, bustling with traffic, is along the Riverside to Orange County corridor of State 91. The 12 lane freeway is one of the most traveled freeways in the nation. The motorist has no expectation of a horse wandering onto the freeway and therefore California law should protect them when such a circumstance occurs. Imagine the surprise when a horse ran onto the freeway and caused a huge pileup and injury accidents in 2008. It seems fair that the owner of the horse should be held liable for an escaped animal under their care unless he or she can show some justification why the horse escaped through no fault of their own. The statutes of the 40's ds not place the burden on the horse owner. Instead it requires the motorist to prove the horse owner did something wrong in keeping the horse secure. This preexisting statutory transfer of burden is not easy for the motorist. The motorist probably does not know where the horse came from, or how it escaped. Relying on the animal owner for an explanation may not be useful since he or she does not want to be found responsible. In modern times, the honest rancher is long gone, and most ranches are run by savvy corporate owners and companies. Their lawyers tell them not to admit any liability. Therefore the horse owner often pleads lack of any knowledge, or blames some trespasser for leaving a gate open. Of course we may ask why can't you lock them? The auto driver loses the case if she cannot prove the negligence and fault. To add insult to injury, an impact with a horse is not considered an impact with an "uninsured motor vehicle." Therefore even if you strike the horse and cannot establish liability of the horse owner, your UM insurance company will not let you recover your damages against the phantom person that allegedly left the gate open. Therefore you are left with little alternative but to live with the damages even though the accident was in no way your fault. In rural America, it made sense to have laws requiring drivers to be more careful and expect animals on roadways. In 2010, that expectation on congested freeways is simply not viable. Shouldn't the law hold the owner liable unless he can prove, not just state, that he did everything he reasonably could to protect against an accidental release of the animal? I think the law needs change, at least when animals stray our freeways. In the meantime, watch for horses and cows, or you may find yourself fighting with modern day rustlers and "losing the ranch."
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