On September 16, 2003 Ronald and Tonya Brookover were traveling on Salome Highway which runs through open range land. The Brookover’s were traveling at approximately 55 mph when Ronald saw a cow ahead and he then slowed down. Unfortunately, he was unable to avoid a second cow, which he struck with the right front portion of his vehicle, causing the vehicle to roll and land on its roof.
The Brookovers were both injured and brought suit against Roberts Enterprises, Inc., the lessee of the land, claiming Roberts was negligent in allowing its cow to enter the highway. (Brookover v. Roberts, 1 CA-CV 05-0444) Roberts moved for Summary Judgment, arguing that, as a matter of law, per Carrow Co. v. Lusby, 167 Ariz. 18, (1990), it could not be found negligent for merely failing to prevent its cattle from entering the highway. In their Response, the Brookovers argued that the facts of each case had to be considered to determine whether the accident was the result of the mere failure to prevent cattle on the highway. They also argued that Roberts was aware through its ranching experience that having an unfenced, paved, high-speed highway traversing grazing land would result in more collisions between automobiles and cows than would be the case where the road was dirt and unimproved.
The Trial Court granted Roberts’s motion for Summary Judgment and, after denying the Brookover’s Motion for Reconsideration, Judgment was entered in favor of Roberts. The Brookovers filed an Appeal. In the Appeal, The Appellate Court affirmed the Trial Court ruling that a livestock owner is not legally responsible to a motorist injured when cattle wandered from unfenced pasture onto the roadway in “open range” territory, “merely” because the owner knowingly placed cattle on unprotected land next to a high speed roadway. The Arizona Court of Appeals held that the owners “knowledge of the risk” based on experience with other ranches and other roadways did not show notice of risk on this particular ranch.
The court did hold that the Brookover’s knowledge that cows had been present on other sections of the roadway, although never in the area of this ranch, was sufficient to put them on notice of the danger. Therefore, the Brookover’s could not recover money from the Ranch owner.
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