Smith v. Meyring Cattle Co. ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/22/2019 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SMITH v. MEYRING CATTLE CO.
Cite as 302 Neb. 116H arley Smith, appellant, v. Meyring
Cattle Company, L.L.C., appellee.
___ N.W.2d ___
Filed January 25, 2019. No. S-18-184.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling
on a motion for directed verdict, an appellate court must treat the motion
as an admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such being the
case, the party against whom the motion is directed is entitled to have
every controverted fact resolved in its favor and to have the benefit of
every inference which can reasonably be deduced from the evidence.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Animals: Liability: Legislature: Words and Phrases. The meaning of
each term in the list of acts by a dog which subject its owner to liability
under Neb. Rev. Stat. § 54-601(1)(b) (Reissue 2010)—currently, “kill-
ing, wounding, injuring, worrying, or chasing”—is dependent on the
other in the context that the Legislature chose to place them.
4. Animals: Liability. The common-law basis for strict liability for the
acts of one’s dog depends upon establishing that the dog has dangerous
propensities or tendencies, because at common law, dogs are presumed
harmless.
5. Statutes. Statutes effecting a change in the common law should be
strictly construed.
6. Animals: Liability: Words and Phrases. “Injuring” under Neb. Rev.
Stat. § 54-601(1)(b) (Reissue 2010) is limited to bodily hurt caused by
acts directed toward the person or animal hurt.
Appeal from the District Court for Box Butte County: Travis
P. O’Gorman, Judge. Affirmed.
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SMITH v. MEYRING CATTLE CO.
Cite as 302 Neb. 116James R. Welsh and Christopher Welsh, of Welsh & Welsh,
P.C., L.L.O., for appellant.
Steven W. Olsen and Jonathan C. Hunzeker, of Simmons
Olsen Law Firm, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
A ranch employee was injured, allegedly as a result of the
ranch’s herding dog nipping at a cow, causing the cow to
charge into the employee. The question presented is whether,
as a matter of law, such allegations fall outside the strict liabil-
ity statute, which states in relevant part that the owner or own-
ers of any dog or dogs shall be liable for any and all damages
that may accrue to any person, firm, or corporation by reason
of such dog or dogs killing, wounding, injuring, worrying, or
chasing any person or persons.
BACKGROUND
Harley Smith worked for the Meyring Cattle Company,
L.L.C. (Meyring), and was injured in an accident that occurred
in December 2011. He sued Meyring under negligence theories
and also under strict liability as set forth in Neb. Rev. Stat.
§ 54-601(1) (Reissue 2010), alleging damages accruing from
a Meyring herding dog “injuring” him. During a jury trial, the
following evidence was adduced.
On the day of the accident, Smith had been pouring a lice
control product on cows’ backs, while Jay Meyring, a co-owner
of Meyring, vaccinated them and another employee tagged
them. This process involved herding cattle into holding pens,
moving a few cows at a time into a “tub,” and then guiding
them from the tub into an alley that led into a chute.
Jerry Meyring, Jay’s father and co-owner of Meyring,
herded the cattle into the holding pens. He then spent most
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SMITH v. MEYRING CATTLE CO.
Cite as 302 Neb. 116of the day moving them in small groups into the tub and
then into the alley. From a platform outside the alley, Smith
poured the lice control product onto the cattle as they moved
in the alley toward the chute, where the tagging and vaccina-
tions occurred.
Occasionally, when Jerry had to move more cattle into the
holding pens from “the hill” where the herd congregated,
Smith was placed in charge of moving the small group of cows
from the tub into the alley. Smith was performing that task
at the time of the accident, which occurred near the end of
the workday.
According to Smith, there were two cows left in the tub.
Smith moved toward the alley to see how many cows were
inside. At that time, one cow moved past Smith from the tub
into the alley. The other cow was still near the gate opposite the
alley. Smith testified that he then saw the herding dog named
“Gunner” on the outside of the gate leading into the tub, “nip-
ping” or “snapping” at the remaining cow’s hooves through a
6-inch opening at the bottom of the gate. Smith stated the cow
immediately charged forward.
Smith was trampled by the cow and sustained extensive
injuries. Smith was found lying in the middle of the alley
with three cows in front of him and one behind. Smith did
not clearly describe how he got there but stated that it was
the result of being knocked down by the cow that Gunner
had nipped. Smith opined that the only reason the cow had
“charged” at him was that Gunner was “nipping on the bottom
of its foot.”
Jerry confirmed that the herding dogs at the ranch were
bred and trained to nip at the heels of cattle, which is designed
to make the cattle move away from the dog, or “escape” in a
“flight response.” Meyring’s herding dogs were not allowed to
be near cattle in enclosed areas. That, Jerry conceded, would
create a danger, especially if a person was in the enclosed
space with the cattle.
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SMITH v. MEYRING CATTLE CO.
Cite as 302 Neb. 116Gunner was trained to stay away from the enclosed tub/
alley/chute area and instead lie down by the “chute house”
some distance away. Jay testified that he had never had any
trouble with Gunner staying where he was supposed to be.
Jay, Jerry, and another employee who testified had never seen
Gunner around the tub area, and they did not see him there on
the day of the accident.
Both Jay and Jerry testified that Smith should have never
entered the alley and that there were several other avenues
of escape from an agitated cow in the tub. Evidence was pre-
sented that the cow in question did not appear agitated imme-
diately after the accident, and Jerry suggested that the tub was
not large enough for any cow to build up significant speed. Jay
testified that Smith should not have been near the alley, look-
ing in, because that was not part of the process.
Smith’s girlfriend at the time of the accident testified that
she and Smith had stayed up the night before the accident
“getting high on methamphetamine” and that Smith “smoked
another bowl of meth” on his lunch break. There was medical
evidence that Smith was under the influence of methamphet-
amine at the time of the accident.
The district court granted Meyring’s motion for a directed
verdict on the strict liability claim under § 54-601. Smith’s
negligence claims were submitted to the jury, which rendered a
verdict in favor of Meyring. Smith appeals the directed verdict
on the strict liability claim under § 54-601(1).
ASSIGNMENTS OF ERROR
Smith assigns that the district court erred in finding as a
matter of law that § 54-601 did not apply to the facts of this
case and in granting Meyring’s motion for partial directed ver-
dict on the issue of strict liability.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
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SMITH v. MEYRING CATTLE CO.
Cite as 302 Neb. 116admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence.1
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.2
ANALYSIS
The question in this case is whether strict liability under
§ 54-601(1) encompasses the act of a herding dog nipping
at the heels of a cow, causing the cow to move forward, col-
lide with a ranch employee, and inflict “bodily hurt” on the
employee. Section 54-601(1) provides:
Dogs are hereby declared to be personal property for all
intents and purposes, and, except as provided in subsec-
tion (2) of this section, the owner or owners of any dog
or dogs shall be liable for any and all damages that may
accrue (a) to any person, other than a trespasser, by rea-
son of having been bitten by any such dog or dogs and (b)
to any person, firm, or corporation by reason of such dog
or dogs killing, wounding, injuring, worrying, or chasing
any person or persons or any sheep or other domestic ani-
mals belonging to such person, firm, or corporation. Such
damage may be recovered in any court having jurisdiction
of the amount claimed.
Smith argues that he presented evidence from which a jury
could have concluded that Meyring was liable by reason of
Gunner “injuring . . . any person” as stated in § 54-601(1)(b).
1
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435(2018).
2
Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698 (2018).
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Cite as 302 Neb. 116He points out that to “injure” has a broad definition of “‘to
inflict bodily hurt on [someone or something],’”3 that stan-
dard principles of proximate causation apply in strict liability
actions,4 and that an animal’s normal response to an action
is not a superseding cause in the chain of proximate causa-
tion.5 Regardless of the merits of these propositions in the
abstract, we agree with the district court that Smith misinter-
prets § 54-601.
[3] We have long strictly construed § 54-601, and the
Legislature has repeatedly acquiesced to our understanding
of its intent.6 In particular, we have held that the meaning
of each term in the list of acts by a dog which subject its
owner to liability under § 54-601(1)(b)—currently, “killing,
wounding, injuring, worrying, or chasing”—“is dependent on
the other in the context that the Legislature chose to place
them.”7 We have consistently explained that the relevant
context was the Legislature’s intent in enacting § 54-601 to
derogate from the corresponding strict liability common-law
action only by eliminating the need to prove that the owner
had knowledge of the dog’s dangerous propensities—and only
as to the acts and persons described in the statute.8 Under
the common-law strict liability action that was modified by
§ 54-601 for those to which § 54-601 applies, a plaintiff
had to demonstrate both (1) that the dog was vicious or had
3
Grammer v. Lucking, 292 Neb. 475, 478, 873 N.W.2d 387, 389 (2016),
quoting Merriam-Webster’s Collegiate Dictionary 601 (10th ed. 2001).
4
See, Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006);
Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987); 5
American Law of Torts § 18:36 (2016); 65 C.J.S. Negligence § 250 (2010).
5
See Brown v. Kaar, 178 Neb. 524, 134 N.W.2d 60 (1965).
6
See Underhill v. Hobelman, 279 Neb. 30, 776 N.W.2d 786 (2009).
7
Donner v. Plymate, 193 Neb. 647, 650, 228 N.W.2d 612, 614 (1975).
8
See, Guzman v. Barth, 250 Neb. 763, 552 N.W.2d 299 (1996); Paulsen
v. Courtney, 202 Neb. 791, 277 N.W.2d 233 (1979); Donner v. Plymate,
supra note 7.
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Cite as 302 Neb. 116dangerous propensities and (2) that the owner knew the dog
to be vicious or dangerous.9
[4,5] The common-law basis for strict liability for the acts of
one’s dog depends upon establishing that the dog has danger-
ous propensities or tendencies,10 because at common law, dogs
are presumed harmless.11 The common law recognizes the right
of the owner to keep a vicious dog for the necessary protection
of life and property, but that one exercising the right to keep
an inherently dangerous dog must do so at his or her own risk
and be held strictly liable for any damage resulting to ­another.12
The vicious or dangerous nature of the dog is essential to
such a claim.13 Statutes effecting a change in the common law
should be strictly construed.14
Thus, we have held that the terms in the list of actions
described in § 54-601(1)(b) must be “read together”15 in light
of the context of the statute to provide for strict liability with-
out proof of the owner’s knowledge of the dog’s “‘dangerous
propensities.’”16 It is improper to read the words as “detached
and separated.”17 Instead, “the meaning of each is dependent
on the other.”18 And we have noted that many of the words
9
See Netusil v. Novak, 120 Neb. 751, 235 N.W. 335 (1931). See, also,
Paulsen v. Courtney, supra note 8; Lee v. Weaver, 195 Neb. 194, 237
N.W.2d 149 (1976); Fritz v. Marten, 193 Neb. 83, 225 N.W.2d 418 (1975);
7 American Law of Torts § 21:50 (2018).
10
See, e.g., 1 Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 23 (2010); 4 J.D. Lee & Barry A. Lindahl, Modern Tort
Law: Liability and Litigation § 37:4 (2d ed. 2006).
11
See 7 American Law of Torts § 21:52 (2018).
12
See Netusil v. Novak, supra note 9.
13
See, generally, id.
14
See Paulsen v. Courtney, supra note 8.
15
Donner v. Plymate, supra note 7, 193 Neb. at 650, 228 N.W.2d at 614.
16
Paulsen v. Courtney, supra note 8, 202 Neb. at 795, 277 N.W.2d at 235.
17
Donner v. Plymate, supra note 7, 193 Neb. at 650, 228 N.W.2d at 614.
18
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Cite as 302 Neb. 116of this statutory list inherently entail violence or an intent to
harm. Thus, a “‘wound’” is “‘[a]n injury of a person or animal
in which the skin or other membrane is broken, as by violence
or surgery.’”19 To “‘worry’” is “‘to treat roughly as with con-
tinual biting’ or ‘to bite or tear with the teeth.’”20 To “‘chase’”
under the statute has been defined variously as “‘to follow
quickly or persistently in order to catch or harm,’” “‘to make
run away; drive,’” or “‘to go in pursuit.’”21 In other words,
the element that the dog be vicious or have dangerous pro-
pensities is implicitly part of the statute through these terms,
read jointly.22
Because the acts described in § 54-601(1)(b) were intended
to be understood as violent acts stemming from dangerous
propensities, we have held that playful and mischievous acts
of dogs directed toward the person sustaining bodily hurt
were not encompassed by § 54-601.23 In Donner v. Plymate,24
for example, we affirmed summary judgment in favor of the
dog owner on a § 54-601 claim when the plaintiff sustained
an injury after a dog collided with her knee in the course of
chasing her playfully as part of the dog’s exercise. Similarly,
in Holden v. Schwer,25 we held that acts of a puppy playfully
running after a three-wheeler and abruptly stopping in front
of it, causing the driver to sustain injuries when she veered to
avoid the puppy, were not encompassed by § 54-601. We have
explained that “[o]bviously the Legislature was fully aware
of the need for protection from the intentional, deliberate,
19
Id. (emphasis supplied).
20
Id. (emphasis supplied).
21
Id. (emphasis supplied).
22
See, Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993); Paulsen v.
Courtney, supra note 8; Donner v. Plymate, supra note 7.
23
See id. See, also, Underhill v. Hobelman, supra note 6.
24
Donner v. Plymate, supra note 7.
25
Holden v. Schwer, supra note 22.
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Cite as 302 Neb. 116and purposeful acts of dogs and as a result restricted section
54-601 . . . to those acts manifesting such qualities.”26
We have also explained in relation to the meaning of the
language of § 54-601(1)(b) that “[t]he purpose of the original
statute was to protect domestic animals, which are ordinary
prey of dogs.”27 In fact, it was not until 1961 that the language
of this “nonbiting” subsection of the statute was amended to
apply to a “person or persons” “kill[ed], wound[ed], worr[ied],
or chas[ed]” by the dog.28 Before that time, the provision here
at issue encompassed only actions directed toward domestic
animals owned by the plaintiff and allowed recovery only for
damages caused by harm to such domestic animals.29 Before
1961, bodily hurt sustained directly by a person fell under
§ 54-601 only if such person had been bitten as described in
subsection (1)(a) of the statute.
When the Legislature added “any person or persons” as
an object of the dog’s acts described by § 54-601(1)(b), the
Legislature clearly meant to expand compensability under the
statute to harm to a person caused by acts other than biting,
acts which manifested the dangerous propensities that are the
historical foundation for the common-law strict liability claim.
Thus, after the amendment, people could bring strict liability
claims under § 54-601(1)(b) for injuries they sustained dur-
ing falls precipitated by dogs “worrying, or chasing” them;
whereas before, they could not.
That language, however, has never been understood as
encompassing bodily hurt to a person by way of a dog wor-
rying or chasing “any sheep or other domestic animals” that,
in turn, collided with the person. Such behavior toward the
dog’s “ordinary prey” has historically been compensable under
26
Donner v. Plymate, supra note 7, 193 Neb. at 649-50, 228 N.W.2d at 614.
27
Id. at 649, 228 N.W.2d at 614.
28
See 1961 Neb. Laws, ch. 268, § 1, p. 786. See, also, Donner v. Plymate,
supra note 7.
29
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Cite as 302 Neb. 116§ 54-601 only if the owner of the “prey” sustained indirect
damages by virtue of the harm to the animal. And, as stated,
all the words of § 54-601(1)(b) must be read together in the
context that the Legislature chose to place them.
To understand the statute more broadly, as Smith sug-
gests, would vastly expand the scope of strict liability for
dog owners. In fact, Smith’s proposed interpretation of the
statute would effectively abrogate the common-law negligence
action that has traditionally coexisted with § 54-601 and with
the common-law strict liability action. A broad reading of
the statute limited only by proximate causation and without
any additional requirement that the dog’s behavior somehow
manifest dangerous propensities would eliminate any reason
for nontrespassing persons suffering bodily hurt to proceed in
negligence, where they would have the additional burden to
prove that the owner of the nonvicious dog should have rea-
sonably anticipated the occurrence.30
To accept Smith’s suggested interpretation of the statute
would make dog owners strictly liable for actions directed
toward “ordinary prey” whenever the prey’s inadvertent physi-
cal harm to a bystander was part of that animal’s normal
response to the dog. It would make cattle ranch owners suscep-
tible to strict liability whenever a herding dog’s normal behav-
ior directed toward a cow leads the cow to collide with and
injure a ranch employee. Based on the history of the statute
and the Legislature’s prior acquiescence to our understanding
of the statute’s limited scope in light of such history, we cannot
conclude that this was the Legislature’s intent. We have never
held that a dog’s actions directed toward another animal can
lead to strict liability under § 54-601 for bodily hurt to a person
by way of such animal instrumentality.
[6] Perhaps Gunner’s alleged act of nipping at a cow’s
heels is not properly characterized as “playful and mischie-
vous,” but it was nothing more than the normal behavior of
30
See Donner v. Plymate, supra note 7.
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Cite as 302 Neb. 116a herding dog, which has never been considered vicious. In
this case, unlike the cases where we have concluded that play-
ful and mischievous acts do not fall under § 54-601(1)(b), the
dog’s acts were not even directed toward the entity suffering
the bodily hurt. Gunner had no direct contact with Smith, and
there is no evidence that Gunner’s actions were in any way
directed toward Smith. Indeed, this is our first occasion to
address the applicability of § 54-601(1)(b) in circumstances
where the dog’s acts were directed solely toward its “ordi-
nary prey” and harm to the animal is not the basis for the
plaintiff’s claim. Given that other words in § 54-601(1)(b)—
“worrying” and “chasing” “any person or persons or any sheep
or other domestic animals belonging to such person, firm,
or corporation”—entail action directed toward the injured
person or toward the injured animal owned by the dam-
aged plaintiff, we hold that “injuring” must also be limited
to bodily hurt caused by acts directed toward the person or
animal hurt.
Even resolving every controverted fact in Smith’s favor and
giving him the benefit of every inference that can reasonably
be deduced from the evidence,31 there was no evidence that
Gunner bit Smith, worried Smith, or chased Smith. And while
Smith allegedly was hurt by a cow that was put in motion by
Gunner, there was no evidence that Gunner’s actions were
directed toward Smith. There might be situations where a dog,
in an act manifesting aggression toward a person, utilizes an
instrumentality to cause the person bodily hurt, but this is not
that case.
Whether Meyring should have foreseen that Gunner would
attempt to herd cattle in an enclosed space and thereby injure
one of its employees was a question of negligence that was
properly presented to the jury. The district court did not err in
concluding that the evidence presented did not fall within the
purview of strict liability under § 54-601.
31
See Jacobs Engr. Group v. ConAgra Foods, supra note 1.
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Cite as 302 Neb. 116CONCLUSION
For the foregoing reasons, we affirm the district court’s
order granting a directed verdict in favor of Meyring on
Smith’s statutory strict liability claim.
A ffirmed.
Miller-Lerman, J., concurring.
I do not read our opinion herein as necessarily endorsing the
majority opinion in Underhill v. Hobelman, 279 Neb. 30, 776
N.W.2d 786 (2009), regarding “injuring” under § 54-601(1)(b),
from which I dissented, and accordingly, I concur.