Plan for the worst, hope for the best, advises ag lawyer

When fires, cattle or herbicides jump fences, the property owner is usually “strictly liable” for whatever escapes his or her property

In the opinion of the courts, cattle belong on pasture, not on the road.

So how does a rancher protect himself from legal liability issues when moving a herd from one part of his property to another via public roads?

The key is having a program to minimize exposure to legal liability in case a speeding driver plows into your herd, says John Stewart, a Winnipeg-based agricultural lawyer.

First, have a frank talk with your insurance agent to make them aware that you regularly engage in such a practice, and second, plan for the worst and hope for the best, he said.

“Beyond that, it’s a case of trying to do a good job and making sure nothing happens. There’s very little else you can do,” Stewart said in a presentation on farm legal liability issues at the recent Ranchers Forum hosted by the Manitoba Forage Council.

Obvious precautions should include posting someone ahead of the herd either on horseback, in a vehicle, or on foot to warn drivers that a herd is following behind. There’s no regulation that requires it, but having a pilot vehicle with flashing lights up front would provide a very strong defence in such cases.

“Then if somebody does something stupid and drives into them, even though you are standing there waving your arms at them to slow down, your defence could be that it wasn’t the cattle that caused it, it was the guy who was driving when it was unsafe to do so,” said Stewart.

In the world of legal eagles, there’s liability, and then there’s “strict” liability. The former is open to argument, but the latter describes cases where there’s “no defence.”

An example of this is when a farmer starts a fire on his land and it escapes and destroys the neighbour’s property.

“Does the neighbour care whether I lit the fire (or) my children, my employee or somebody we don’t know lit the fire?” said Stewart.

Essentially, the owner of the land is strictly liable for whatever escapes his or her property, whether it was fire, a herbicide application, or a herd of cattle trampling a neighbour’s crops.

“You can’t go back and say it wasn’t your fault because you didn’t do it,” he said. “As the owner of the asset, you are personally responsible.”

Things get murky, however, when a disaster unleashes a chain reaction of adverse events that cross multiple property lines. For example, if an accidental fire spreads from one farm to the neighbour’s, and then from there on to another, is the first property owner liable for all three?

“The great part about that question is that’s how we make a living,” said Stewart, prompting much laughter.

If a fire broke out in a parking garage and jumped from car to car, the courts might be asked to pass judgment on whether the car owner was to blame, or the architect, who designed a structure that allowed cars to be parked so close together.

Preserving evidence is key in such cases because each witness called to testify is likely to have a different version of events.

For injured parties, it’s important to have a regularly updated descriptive inventory of all assets on the farm that includes estimated values and condition.

When making a claim, be sure to keep receipts and records of all expenses incurred as a result, and ensure it is all compiled in a credible fashion so that the insurance company can use it as leverage for the ultimate goal of “getting a cheque” out of somebody for you.

“Take pictures, take lots of pictures, take a video if you have to, but make sure you have some way to preserve all the evidence,” said Stewart.

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