A divided Arkansas Court of Appeals has ruled that a truck driver involved in an accident which killed 38 cattle he was transporting cannot be held liable for the improper burial of the animals by a third party.

The decision of a 6-3 majority affirmed a trial judge's summary dismissal of an unusual negligence case filed by Louis and Elizabeth Schmoll after a wrecker service buried the cattle at their stockyard without their permission. The suit alleged that cattle truck driver William Cole and his employer, Ronny Kisner, breached their duty to ensure proper disposal of the animals.

“[I]t would stretch foreseeability to say that Kisner and Cole should have anticipated that someone over whom they had no control would improperly dispose of dead animals by burying them in a shallow pit on another person’s property without the landowner’s knowledge or consent,” Chief Judge John Mauzy Pittman wrote for the majority.

But in a dissent, Judge Karen R. Baker said the stockyard owners did not have to show the “exact or precise harm that occurred” was foreseeable.

“It is only necessary that the defendant be able to reasonably foresee an appreciable risk of harm to others,” she continued, and, applying that standard, it was foreseeable that “the failure to properly dispose of the dead cattle would cause harm.”

Cole's truck crashed in December 2002 when he allegedly fell asleep at the wheel. A wrecker service was called to the scene by police and hauled the dead cattle in a dump truck to the Schmolls' yard.

While the dump truck operator testified he did as a state trooper told him and received no instructions from Cole or Kisner, the Schmolls argued that the defendants had “a duty and responsibility to ensure that the cattle were properly disposed of.” Under Arkansas law, it is illegal to “in any manner leave or abandon any solid wastes … upon any public highway, street, road … or other public property ...”

Judge Baker found the majority had erred by viewing the trespass on the Schmolls' property as an intervening cause which broke the chain of causation between the accident and the improper burial.

“Any trespass committed during the disposal of the carcasses cannot eliminate the negligence that resulted in the death of the cattle and the improper disposal of the dead livestock which led to the damages suffered by the Schmolls,” she concluded.

The Schmolls sued for the amount they spent to clean up their property and for damages to their business.

By Matthew Heller
1/3/09