Bizarre, Torts

Mooving Violation: Family Hit By Flying Cow in North Carolina

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.

71 thoughts on “Mooving Violation: Family Hit By Flying Cow in North Carolina”

    1. It’s very easy to believe. I don’t know of any case of a cow killing a shark.

  2. I hope they did a blood draw before shooting the cow. If its BAC level was above the legal limit it was guilty of contributory negligence for DUI (dogies under the influence). Ba-dum-ching.

  3. 1400 pounds is large for a ready to slaughter beef steer. Even large Holstein cows are less than a thousand.

    1. 60 years ago, Beef Steers were considered ready for Slaughter ~1200lbs. Heifers would be smaller. This was for the beef breeds, with Herford based genetics, Herford/Angus cross “fancy black baldies). Today, the breeders have crossed larger framed cattle(Simmental, Charolais, etal) into the beef breeds.
      The balancing act is getting an animal larger, for a larger cutout yield. Packers overhead is fixed per animal, not per pound. Balanced with grade, Select, Choice, Prime. That is the marbling through the meat.

      Live Weights into the packing plants are up to close to 1400lbs

  6. Certainly the outcome was a Miss Steak as in this case it was the Victim that was grilled.

  10. In this case, will it be an issue why the woman was on her phone while driving and talking to her husband BEFORE and as the cow hit her vehicle? An individual’s undivided attention is needed to what is ahead of them, behind them, to the side of them during situations that can arise such as this, and possibly both hands on the wheel was not on the wheel of the vehicle being diverted when seconds count.

    1. she may have linked her phone to the car via bluetooth. boy of my cars have that capability. allows for hands free taling on the phone . check it out
      holding a phone to your ear reduces your attention, but using bluetooth is like talking to someone sitting in the passenger seat

      1. Her husband here: she was using the built in bluetooth hand-free phone system of the van.

        1. Good initial question. Good response. But I am curious as to the Tort angle on flying cows if you were committing a traffic violation at the time. I can see it now:

          “Mr Smith, isn’t it true that you were speeding?! And that your child was tossing ice cream on the windshield?! Your dog barking and in the front passenger seat unrestricted?!”

          “Isn’t it all true???!”

  12. Maybe sometimes stuff just happens, and tort law doesn’t need to redress everything.

    But I’m biased. Around a dozen years ago, while driving at high speed across South Dakota, I couldn’t safely avoid hitting the cutest little bunny that hopped smack into the middle of the lane, and then sat there frozen in fear — and I’m still haunted by it.

    1. Lin,
      I agree.
      We owe it to those whom we slaughter to a humane, quick and painless kill.
      I always thank them for their sacrifice.
      Humans . . . . not so much.
      Just saying.

  14. Yep.
    I have a few million in insurance for instances just like this one.
    I keep the livestock a good distance away from the road, but just in case.

    1. Upstate, we have insurance too because as we learned from our Longhorns, just like some politicians, a fence is not much of an obstacle when temptation is just a few pastures away.

          1. HullBobby,
            HA!
            Thank you for the laugh!

            To all and the good professor, thank you for all the laughs!
            I think this was better than reading the Bee!

        2. UpstateFarmer……Thank you! I’ll be here all week! Try the veal! (literally!!) 🙂

          1. Your comments are Whey out of line, unherd of, just because you want to milk this. Casein you see that it is pasture your bedtime? otherwise your posts may become unrelia-bull which might necessitate activating the moooote button.

            My apologies if I butchered your comments. You really hit the bulls-eye and perhaps become legend-dairy

            1. Estovir! Hilarious! Moochas Grass-ias!

              Your comment is a masterpiece!!!

  16. When I told my mother I was going to take torts in law school, she said “How nice that they teach cake-baking as an elective”.

    Somehow, I have the feeling there are those who frequent this blog who will blame Trump for the cow’s demise.

    1. “. . . blame Trump for the cow’s demise.”

      No. No. No.

      Clearly, the culprit is climate change. The poor, displaced cow was merely migrating to cooler (or is it hotter?), drier (or is it wetter?), higher (lower?) grounds.

    2. Do you mean cow’s demise or cows’ demise? Because Turley states that “sheriffs are still trying to identify the owner of the cows”. Similarly, Turley quotes the former student’s wife as saying “the truck … hit a cow” and the former student’s five-year-old as referring to “car-fixing places”, yet Turley states there was “damage to the van.” Then he introduces “an airborne car and the speed of the van”.

      I submit that “an airborne car” speaks for itself as evidence of an out-of-control driver. There’s way too much hearsay here to draw much of a conclusion, but I infer that Mrs. Turley drives a van and Prof. Turley somehow conflated that vehicle with his former student’s wife’s car.

      1. Thanks. I’m the husband in the story, and I can tell you for sure that my wife was driving the minivan pictured above. For my five-year-old (as for many more sophisticated English speakers), a minivan is well within the semantic range of the word “car.”

        As to the number of cows: only one hit my wife’s van, but we learned subsequently that it was a member of a group of cows in the immediate vicinity. The Sherriffs rounded up several other unharmed specimens at the scene.

  17. interestingly here in the state of Ohio, if you shoot a dear out of season you are charged because the deer is “state property”. however if the deer runs in front of you it instantly becomes not state property and you are not able to collect from the state for not managing it’s property. Sauce for the goose thing, you know.

    1. This is entirely consistent with the California doctrine that if you shoot and injure a dear pregnant woman and kill her fetus, you are charged because you murdered a human being; however if she gets an abortion at nine months, the fetus instantly becomes tissue and the one who did it is a health care provider compensated by insurance. Wake up and take a gander.

  18. AS Defense Counsel for the Cow*,

    We claim through Admission of the Driver of Vehical-2, Vehical-2 struct the Deceased (Herein after Cow) in an ‘involuntary’ manner, but had not killed the Cow through contact of Their own. Driver of Vehical-1 created initial contact with the Cow setting flight of Cow into Vehical-2.

    Driver of Vehical-1 stated in deposition that He “Did not intentionally mean to Hit the Cow but could not avoid the collision” as Vehical-1 did not have the “Assured Clear Distance Ahead” in order to Stop before contact occurred.

    This collision would be said to be similar to that of a Multi-Vehicle pile up on Icy Roads (Winter), wherein Drivers are traveling at speed to fast for prevalent conditions. Indeed Photo(s) show that Road Conditions were in fact Icy and Snow covered (Exhibit #13)**.

    Both Drivers are guilty by Their own admission of Involuntary Vehicular Bovincide.

    In General Cattle (Bos Taurus) are a: large, domesticated, cloven-hooved, herbivores, gentle in nature, and friend of Mankind. They are a prominent modern member of the subfamily Bovinae ~ Anugus. As such the unprovoked taking of this Life (Cow) was an unnecessary, meaningless, and tragic Act cause by the negligence of the Drivers of Vehical-1 and Vehical-2.

    The Families of the Deceased (the Angus Family) Pray Upon the Court to find in favor of Our Client for Relief and Damages of $787 Million Dollars***, Filing Fees, and reasonable Attorneys Fees.

    Morgani & Morgani

    —

    * Don Morgani & Morgani Esq. (et.al.)

    ** Exhibit #13 See Turley’s Blog:
    https://i0.wp.com/jonathanturley.org/wp-content/uploads/2023/04/IMG_6292.jpg?resize=225%2C300&ssl=1

    *** Currently the going Rate as set per the Dominion Voting Systems v. Fox News Network

    AD: Need Cash Money Now? -Call J.G. Wentworth-

    1. Ohio Code 4511.21 – Speed limits – assured clear distance
      https://www.lawserver.com/law/state/ohio/oh-code/ohio_code_4511-21

      (A) No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit the person to bring it to a stop within 𝐭𝐡𝐞 𝐚𝐬𝐬𝐮𝐫𝐞𝐝 𝐜𝐥𝐞𝐚𝐫 𝐝𝐢𝐬𝐭𝐚𝐧𝐜𝐞 𝐚𝐡𝐞𝐚𝐝.

      “… 𝐡𝐚𝐯𝐢𝐧𝐠 𝐝𝐮𝐞 𝐫𝐞𝐠𝐚𝐫𝐝 𝐭𝐨 𝐭𝐡𝐞 𝐭𝐫𝐚𝐟𝐟𝐢𝐜, 𝐬𝐮𝐫𝐟𝐚𝐜𝐞, 𝐚𝐧𝐝 𝐰𝐢𝐝𝐭𝐡 𝐨𝐟 𝐭𝐡𝐞 𝐬𝐭𝐫𝐞𝐞𝐭 𝐨𝐫 𝐡𝐢𝐠𝐡𝐰𝐚𝐲 𝐚𝐧𝐝 𝐚𝐧𝐲 𝐨𝐭𝐡𝐞𝐫 𝐜𝐨𝐧𝐝𝐢𝐭𝐢𝐨𝐧𝐬 …”
      https://i0.wp.com/jonathanturley.org/wp-content/uploads/2023/04/IMG_6292.jpg?

  19. Thankfully I read the article. When I saw the headline I immediately thought The View had again descended into chaos and Whoopie Goldberg had taken a flying leap at someone who disagreed with her.

    1. Ha, – or Sunny Hostile, kickin’ butt at conservative Republican cattle-owners

  20. So what’s the legal Latin for “The Evidence was delicious”?

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