Freels, which Freels intended to breed with his cattle. Freels put the bull in his pasture, with his cows. The pasture was enclosed by "four square" wire fencing with posts spaced sixteen feet apart, with an electric barb on top.
The next day, however, the bull went underneath the fence, which enclosed the pasture, and into an adjacent hayfield. Freels Dep. at 18-19. The hayfield was enclosed by the same type of "four square" wire fence as the pasture. Freels Dep. at 22. Freels' response to the bull's escape into the hayfield was to tell his wife to open the gate between the hayfield and the pasture, in hopes that the bull would return to the cows. Freels Dep. at 19-20. Instead, on the afternoon of July 26, the bull escaped from the hayfield, and roamed at large. Freels Dep. at 22-23. Only on the day after the bull's escape, did Freels, his wife, and Griffiths begin to search for and attempt to capture the bull. Freels' wife also alerted the Sheriff's department that the bull was loose. Freels Dep. at 37-38.
On the evening of July 27, the night patrolman of Chain-O-Lakes State Park, Wayne Collinsworth, was able to enclose the bull in the park's compound area. The compound area was enclosed by a seven to eight foot high chain link fence, with barbed wire at the top. Collinsworth padlocked the gate, and posted a sign on it which read "Do not open. Bull inside." Collinsworth Affidavit, para. 3-4. The bull somehow escaped from this compound area, and again became "at large."
On July 29, 1987, a semi-tractor-trailer, driven by Doyle's employee, Arthur C. Winston, on State Road 9 near the intersection of County Road 200 South in Noble County, Indiana, collided with the bull. As a result of this collision, Winston was killed, and Doyle's vehicle was completely destroyed.
Doyle complains that, because Freels was in possession of the bull at the time it escaped, Freels owed Doyle a duty to maintain the bull in the confines of his property and to prevent and restrain the bull from entering onto the highway. Doyle further contends that as a direct and proximate result of Freels' failure to prevent the bull from entering the highway, the bull did enter the highway and cause the collision between the semi-trailer and the bull.
Freels admits that he had a duty of reasonable care to maintain the bull in the confines of his property and to take reasonable measures to capture the bull if it should escape. Freels, however, contends that he did not breach this duty of reasonable care and that any damages sustained by Doyle were the fault of the State of Indiana, through its agents, the employees of the Chain-O-Lakes State Park, who captured the bull but subsequently allowed the animal to escape from the park's confines. It is therefore Freels' claim that the actions of the state were a superceding, intervening cause which bars Doyle's claim against Freels. Finally, Freels contends that the collision was the proximate result of fault on the part of Winston, the driver of the truck. He asserts that such fault prevents Doyle from recovering any damages from Freels.
THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER FREELS EXERCISED REASONABLE CARE IN CONTROLLING THE BULL
Indiana law governs in this diversity case, as the acts or omissions giving rise to this tort action occurred in Indiana. R & L Grain Co. v. Chicago Eastern Corp., 531 F. Supp. 201, 204 (N.D.Ill. 1981); DP Service, Inc. v. AM International, 508 F. Supp. 162, 165 (N.D.Ill. 1981).
It is well established under Indiana case law that an owner or keeper of cattle has a duty of reasonable care for containing and controlling his livestock to prevent danger to the motoring public. Eisman v. Murdock, 542 N.E.2d 236, 237 (Ind.App. 2d Dist. 1989); Thompson v. Lee, 402 N.E.2d 1309, 1313 (Ind.App. 1st Dist. 1980).
In Leek et al. v. Lumpkin, 141 Ind. App. 153, 226 N.E.2d 913 (1967), the Indiana Appellate court set forth the burden which is placed upon the plaintiff to show a breach of duty on the part of a keeper of livestock.
1. The Plaintiff [is] required to establish that the Defendant was negligent in his choice of the field in which he placed the animal and could reasonably foresee that the animal would escape therefrom; or,
2. He must have had knowledge that the animal was on the public highway and in violation of the statute, permitted the animal to remain at large.