Earlier this year a woman and her two young children, were killed when their car struck an unusual and unexpected pedestrian on I-95 in South Carolina: an alligator. While alligators are unlikely to appear on Kentucky roadways anytime soon, other animals can frequently become hazards to Kentucky motorists. White-tailed deer, for example, are a common sight in Kentucky’s forests and, as far as traffic accidents are concerned, can be just as dangerous to drivers as an alligator.
In 2016, 3,063 collisions with deer were reported in Kentucky, three of which were fatal. Deer are not the only animal on Kentucky roads, however. There were 3,592 collisions with other animals in 2016 as well, and one of those collisions resulted in a fatality. Animal action was listed as a contributing factor in 6,515 collisions in Kentucky in 2016.
In the event of a collision with farm animals that have found their way onto a road, Kentucky motorists may be able to recover from the animal’s owner. KRS § 259.210 states that “[n]o person shall permit any cattle owned by him or under his control or in his custody, to run at large. If any damage is committed by cattle permitted to run at large, the owner of the cattle shall be liable for all damages, whether the place where the damages occurred is [e]nclosed by a lawful fence or not.”
Kentucky courts have explained this statute and applied it to cases involving a motor vehicle collision with livestock. In Ellington v. Strader, the Court of Appeals held that, by submitting proof that a collision with a cow occurred and that the defendant owned the cow in question, the plaintiff established a prima facie case of negligence. Further, after a prima facie case is established, a defendant must offer evidence. If they do not, as in Ellington, then a directed verdict in favor of the plaintiff is appropriate. 285 S.W.2d 497 (Ky. Ct. App. 1955).
The Court of Appeals clarified the Ellington decision nearly a decade later in Sparks v. Doe. In Sparks, the plaintiff truck driver struck a cow that wondered into his lane in the early hours of the morning, right in front of defendant’s farm. Evidence submitted by the plaintiff indicated that the fence surrounding the defendant’s farm was in a state of disrepair and could have led to the bovine escape. The defendant, on the other hand, submitted contradictory evidence to show that the fence was adequate. However, she could not explain the escape, and this distinguished the case from Ellington, where the defendant did not present any evidence at all. Sparks v. Doe, 379 S.W.2d 252, 254-55 (Ky. Ct. App. 1964).
Recognizing that, on occasion, stock may escape from a farm without negligence on the part of the owner, the court clarified its earlier holding. While a directed verdict in favor of the plaintiff is appropriate “[i]f the owner of the straying cow chooses to stand mute,” Ellington “did not imply that the owner must always be convicted of negligence unless he succeeds in showing just how the escape occurred.” Sparks, 379 S.W2d at 256. Doe, the court held, “produced sufficient evidence of the exercise of ordinary care to create a jury question.” Id. In other words, “the unexplained presence of a cow on a highway creates against the owner a rebuttable presumption of negligence….” Id. at 254.
Although KRS § 259.210 uses the word “cattle,” it’s application is not limited only to bovines. The statute was applied in Rankin v. Blue Grass Boys Ranch, Inc., when a pony and a mule both found their way onto a public highway and the plaintiff collided with the mule. 469 S.W.2d 767 (Ky. Ct. App. 1971). Therefore, recovery is possible even if the offending animal is not a cow.
The Court of Appeals has, however, identified at least one limitation on the statute’s applicability, albeit in an unpublished opinion. In Groves v. Woods, the plaintiff leased, at least, a house and yard from the defendant. The yard was located next to a pasture and barn also owned by the defendant, which contained Hank, a horse that the defendants boarded. While she was walking with her children, Hank chased the plaintiff down and stomped on her thigh, causing injury. Groves v. Woods, 2018 Ky. App. LEXIS 59 at *1-*3 (Ky. Ct. App. 2018). The parties disagreed on both how much of the property was covered by the plaintiff’s lease and which side of the property that the injury occurred on. Id. at *2-*4. The plaintiff argued, among other things, that KRS § 259.210 applied because neither of the parties owned Hank. The court disagreed and held that “[t]he statute is only applicable if the animal is on a public roadway. Id. at *18-*19.
We hope we don’t see gators on Kentucky roadways anytime soon, but cows and horses are a real possibility. If you’re injured after hitting an animal in the roadway, you may be able to recover damages.