Simranjit Singh v. Michael Walter McDermott ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1337
Filed June 21, 2023
SIMRANJIT SINGH,
Plaintiff-Appellant,
vs.
MICHAEL WALTER McDERMOTT,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cass County, Craig M. Dreismeier,
Judge.
A plaintiff appeals a district court order granting the defendant’s motion for
summary judgment and dismissing his claim for negligence. AFFIRMED.
Matthew M. Sahag and Gary Dickey of Dickey, Campbell & Sahag Law
Firm, PLC, Des Moines, for appellant.
Raymond E. Walden, admitted pro hac vice, and Michael T. Gibbons and
Christopher D. Jerram, of Woodke & Gibbons, P.C., L.L.O., Omaha, Nebraska, for
appellee.
Heard by Ahlers, P.J., Chicchelly, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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CHICCHELLY, Judge.
Around 2:00 a.m. on January 26, 2019, Simranjit Singh was driving his
semi-truck east on Interstate 80 when he collided with a black cow that was
standing in the right lane. Singh filed a claim for negligence against the cow’s
owner, Michael McDermott. McDermott does not dispute his ownership of the cow
or the property adjacent to the collision. Singh claims to have suffered personal
injuries and property damage to his semi-truck in the amount of $44,094.94.
Finding Singh could not prove McDermott breached a duty of care or that the
doctrine of res ipsa loquitur should be applied, the district court granted
McDermott’s motion for summary judgment and dismissed the suit. Reviewing
Singh’s timely appeal, we find no errors at law and affirm the district court’s ruling.
See Susie v. Fam. Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 336 (Iowa
2020) (setting forth standard of review).
In reviewing a ruling on summary judgment, we view the facts in the light
most favorable to the nonmoving party. Id. at 337.
The burden is on the moving party to demonstrate the nonexistence
of a material fact question. However, the nonmoving party may not
rely on mere allegations in the pleadings but must set forth specific
facts showing a genuine issue for trial. If the nonmoving party cannot
generate a prima facie case in the summary judgment record, the
moving party is entitled to judgment as a matter of law.
Id. at 336–37 (internal citations omitted). “The requirement of a ‘genuine’ issue of
fact means the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Fees v. Mut. Fire & Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa
1992) (citation omitted). “An issue of fact is ‘material’ only when the dispute is over
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facts that might affect the outcome of the suit, given the applicable governing law.”
Id. (citation omitted).
To prove negligence, a plaintiff must establish the applicable duty of care,
a breach of that duty, proximate cause, and damages. See Thompson v.
Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009). Singh argues that McDermott’s
ownership of the cow imposes a duty of ordinary care to keep the cow off of the
highway and, therefore, the cow’s unattended presence on the highway exposes
McDermott’s breach. But Singh’s summation is misdirected. In Klobnak v.
Wildwood Hills, Inc., 688 N.W.2d 799, 802 (Iowa 2004), our supreme court held
that “an owner still has a duty to use ordinary care when harboring animals and
may be liable if he could reasonably anticipate that injury may occur if they roam
at large.”1 The distinction is subtle but important. Although injuries could
reasonably be expected if a cow roamed the highway and the ordinary care should
therefore be exercised with a goal of keeping animals off of the roadway, the duty
itself is to use ordinary care in harboring the animal. In contrast, Singh’s approach
would impose a duty to keep livestock off of the highway so that a cow’s presence
on a highway, regardless of how it came to be there, would constitute breach of
duty. We find no authority for Singh’s method, which would effectively be an
application of strict liability.
Instead, liability lies when the owner failed to act with ordinary care in
harboring the animal. Singh sets forth no specific facts to generate a dispute on
1 The court acknowledged that there is no longer a statutory duty to restrain
livestock because our state’s “fencing in” statute was repealed in 1994, nor is there
a “specific duty to restrain livestock exist[ing] at common law.” See Klobnak, 688
N.W.2d at 800 (citing 1994 Iowa Acts ch. 1173, § 42(1)).
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this point. He collected photographs of fencing on McDermott’s property but does
not allege any deficiencies with the enclosure. He did not depose McDermott or
any expert to ascertain the adequacy of McDermott’s fencing or other harboring
practices. Therefore, a reasonable jury could not find Singh has established that
McDermott breached his duty of care. See, e.g., Radojcsics v. Ohio State
Reformatory, 368 N.E.2d 1284, 1286 (Ohio Ct. Cl. 1977) (“Since plaintiff has not
demonstrated that defendant had notice of the escape or of any defect in the fence
prior to the accident and since she has failed to show that the fence was improperly
maintained or in any way inferior to those in general use for similar purposes, the
court must conclude that she has not proved any negligence on the part of the
defendant.”).
Singh also contends that McDermott’s negligence speaks for itself because
the cow was unattended on the highway when it should have been properly
confined. However, we find the doctrine of res ipsa loquitur should not be applied
because a cow may come to be on a roadway without any act of negligence
necessarily bringing it there. See, e.g., Brauner v. Peterson, 557 P.2d 359, 361
(Wash. Ct. App. 1976) (“With regard to res ipsa loquitur, the presence of an animal
at large on the highway is not sufficient to warrant application of the rule, [i].e., the
event must be of a kind not ordinarily occurring in the absence of someone’s
negligence. A cow can readily escape from perfectly adequate confines.”); see
also Reed v. Molnar, 423 N.E.2d 140, 145 (Ohio 1981) (noting “there has been
judicial recognition that cattle and other domestic animals can escape from
perfectly adequate confines”); Ladnier v. Hester, 98 So. 3d 1025, 1028–29 (Miss.
2012) (“The mere fact that livestock escapes from an enclosure and an accident
5
occurs is not evidence of negligence on the part of the owner; the plaintiff must
prove actual negligence.”).2
Like the district court, we note that “[s]ummary judgment ‘is not a dress
rehearsal or practice run’ for trial but rather ‘the put up or shut up moment in a
lawsuit, when a [nonmoving] party must show what evidence it has that would
convince a trier of fact to accept its version of the events.’” Garrison v. New
Fashion Pork LLP, 977 N.W.2d 67, 88 (Iowa 2022) (second alteration in original)
(citation omitted). Because Singh has not put up evidence by which a reasonable
jury could find McDermott was negligent, we affirm the district court’s dismissal of
this action.
AFFIRMED.
2 In oral argument, Singh’s counsel stressed his reliance on res ipsa loquitur as
preventing summary judgment. Our appellate courts have discussed liability
regarding a vehicle striking livestock on a roadway but have not previously
addressed the application of res ipsa loquitur under those facts. We recognize
there is a split of authority as to whether and to what extent the doctrine of res ipsa
loquitur applies. See James L. Rigelhaupt, Jr., Liability of Owner of Animal for
Damage to Motor Vehicle or Injury to Person Riding Therein Resulting from
Collision with Domestic Animal at Large in Street or Highway, 29 A.L.R.4th 431,
§§ 8(a), (b) (1984) (listing cases). Based upon our analysis of this jurisdictional
split, we hold the view that a cow’s escape is not prima facie evidence of
negligence because livestock’s “animate self-propulsion” is often sufficient to
overcome perfectly adequate confines. Pepper v. Bishop, 15 Cal. Rptr. 346, 349
(Ct. App. 1961).