Teaching torts, it is easy to develop a sense of the macabre. Torts involves every possible thing that can happen to people from finding a toe in chewing tobacco (Pillars) to being killed by a flying coffin at an amusement park (Chueng). Since I was a law student, I have also noted bizarre “flying body” cases of torts. This week a former student named Ben sent a personal account of a truly bizarre run-in with an airborne cow. Fortunately, the family was unharmed in the incident. The same cannot be said for the cow.

My student’s wife, Chelsea gave the following account:

“I was driving eastbound on a 4-lane road in light traffic. I was in the left lane, and the truck a little ahead in the right lane hit a cow that had apparently wandered into the road. The cow came flying off the hood of the truck and towards me. I moved over into a turning lane to try to avoid it, but it landed partially on my hood from the right side.”

Ben added his own details

“I happened to be on the phone with her when it happened and for a few minutes after until I had her hang up and call 911. The last thing I heard before my wife hung up was my 9-year-old exclaiming “Darn that cow!” Later, when she called back I heard my 5-year-old tearfully asking “Mama, are car-fixing places real?” On that call, I heard a gun go off in the background, which startled us both. That was the end of the cow.”

They report that the the sheriffs are still trying to identify the owner of the cow and that they were “curious whether that person will be liable here.”

First, as Ben knows from class, this is not the first falling or flying cow tort. For example, in Guthrie v. Powell, Fannie Hope Guthrie, 66, was sitting chatting with friends in a lounge near a cattle show at the Cowley County Fair Grounds. She was then suddenly crushed when a 600 pound steer crashed through the ceiling and land on her. The cattle show said the steer just wandered upstairs and that they “had no knowledge of the animal’s peculiarities or its propensities”

Such cases often become matters of res ipsa loquitur (the thing speaks for itself). Thus, in the famous case of Bryne v. Boadle when a man was mysteriously crushed by a falling flour barrel, Chief Baron Jonathan Frederick Pollock declared “there are certain cases of which it may be said res ipsa loquitur, and this seems one of them.” In other words, there are certain cases where negligence can be assumed.

There was a case where a woman was crushed by a horse in her garden. The horse was clearly sent aloft and there was a nearby train that had passed. The theory was that the “cow catcher” in front of the train sent the horse over the fence and on top of the woman.

Second, it would be reasonable to assume liability here under a type of RIL (though that assumption is not correct in many states, as discussed below). The Second Restatement of Torts states the standard:

Ҥ 328D Res Ipsa Loquitur

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.”

This accident likely involves multiple actors. First, there is the owner of the now deceased cow. Somehow this cow broke loose in transport or from a nearby farm. (It could have been the result of an accident with a cattle truck, but the continued searching for the culprit makes that less likely. Chelsea also reported a truck hitting the cow before her own impact). Second, another car or truck had to hit the cow to make it go airborne.  Again, Chelsea recalls seeing the contact with the truck.

Now, before my other former students suggest that this could be strict liability for animals, this is not a case of a vicious or wild animal biting, goring, or crushing a person. Putting aside that cows are domesticated (not wild) animals, there is no indication of a vicious propensity of this particular cow. Under the common law, a domesticated animal is subject to a negligence, not a strict liability, standard absent some vicious propensity. This led to the “one free bite” rule for dogs in establishing such a vicious nature. The family does not allege that this was a targeted attack by a mad cow with a unique bovine flight capability.

Others may say that there is still strict liability for wandering cows. Under the common law, the owner of cattle is liable in damages irrespective of negligence or fault for all injuries resulting from trespassing cattle (Prosser, Law of Torts, supra, pp. 496-497). Economists have long argued that this rule reflected an efficiency principle that it is better to force a few to fence in cattle than make everyone else fence them out. However, it is not clear if this cow was trespassing as opposed to transported by mechanical means.

Regardless of whether the cow was trespassing before the accident, there is the basis for liability here. The negligence in the handling or control of the animal was likely the proximate cause of the damage to the van. There could be multiple parties liable for both the handling of the animal and the first contact with another vehicle.

It sounds like the truck may have had the initial contact but there could have been a secondary hit (and Chelsea had a third impact).  However, assuming that the truck hit the cow in the road, there might be negligence on the part of the truck driver in failing to see or avoid the animal if the driver was driving at an excessive speed or while distracted. Yet, given the speed of vehicles, there may not have been time to avoid the collision. We simply do not have those facts.

That brings us to the primary party for negligence: the owner of the cow. If the cow was allowed to wander through negligence in the maintenance of a fence or supervision, these are foreseeable results for that negligence. Moreover, the owners of these cows are generally identifiable by their ear tabs or brands.

However, in many states, there is likely no presumption of negligence as under res ipsa loquitur.

Some states reject any presumption of negligence in cow-road accidents. For example, Neb. Rev. Stat. § 25-21,274 requires the injured person to prove that a livestock owner was negligent in allowing the cow to escape. The law stipulates that “The fact of escaped livestock is not, by itself, sufficient to raise an inference of negligence against the defendant.”

Likewise, California law states

“In any civil action which is brought by the owner, driver, or occupant of a motor vehicle, or by their personal representatives or assignees, or by the owner of livestock, for damages which are caused by a collision between any motor vehicle and any domestic animal (livestock) on a highway, there is no presumption or inference that the collision was due to negligence on behalf of the owner or the person in possession of the animal.”

Despite the tragic end for this cow, it is extremely fortunate that no one was hurt. The average weight of a cow is 1,400 pounds. That is almost a third of the weight of some vans. Given the velocity of an airborne car and the speed of the van, the impact is tremendous. Fortunately for Chelsea and her kids, it sounds like it was a deflected hit on her own vehicle.

There are almost 30,000 injuries each year from road accidents with animals. Out of a study of 44,000 traffic fatalities each year, about 200 occurred in animal-related crashes. In 2000, there were 247,000 crashes. Nine out of ten of those accidents reportedly involve deer. Notably, half of those accidents involve swerving to avoid deers, cows, squirrels, bears, dogs, raccoons, and other animals.

So, the answer is that there may be liability in this case, but there may not be a presumption of negligence.