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T.M. DOYLE TEAMING CO. v. FREELS

March 16, 1990

T.M. DOYLE TEAMING CO., INC., Plaintiffs,
v.
ALLEN L. FREELS, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of defendant, Allen L. Freels ("Freels") for summary judgment, pursuant to Fed. R. Civ. P. 56, on the complaint of plaintiff, T.M. Doyle Teaming Co., Inc. ("Doyle"). For the following reasons, the motion is denied. *fn1"

 Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence which supports his complaint. Id.; see First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Accordingly, the nonmoving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id.2

 FACTS

 The court adopts the following as the undisputed material facts. Freels owns a farm in Albion, Indiana, on which he raises beef cattle. On July 25, 1987, a neighboring farmer, Dave Griffiths, loaned a bull to 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.

 DISCUSSION

 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. ...


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