NC State Extension Publications

Introduction

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Any owner or keeper of livestock on their land or leasehold should be aware of the various rules of liability for any injuries or property damage caused by such animals, whether on the farm or loose outside the property. To prevent or limit liability, you must know your responsibility toward keeping animals secured and in controlled contact with other people. More specifically, you must understand the extent to which awareness and documentation can forestall liability in the event someone on your property is injured by an animal that is confined or has escaped its pen. This paper reviews North Carolina fence law relating to loose livestock, as well as the standards (and defenses) for potential liability for injuries by livestock, both on and off the farm.

This factsheet covers the following topics:

  • North Carolina fence law
  • Impoundment of loose livestock
  • Off-farm injury from loose livestock
  • Injury by livestock on the farm
  • “Visitor liability defense” statutes
  • Animal injury to trespassers

North Carolina Fence Law

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North Carolina places the responsibility on livestock owners to keep animals fenced. North Carolina’s fence law prescribes a Class 3 misdemeanor penalty to a livestock owner or keeper “who allows a livestock animal to run ‘at large’” (N.C.G.S. §68-16) with a maximum penalty of a $200 fine or 20 days in jail (N.C.G.S § 15A-1340.23). Livestock is defined as “equine animals, bovine animals, sheep, goats, llamas, and swine” (N.C.G.S. §68-15). Loose poultry is addressed in the next section. No type of fencing is specified; it is left to the owner to ensure that fencing contains the livestock and is kept in good repair. Non-livestock farming operations are not required to have fencing, and the absence of fencing does not negate criminal or civil trespass by others.

Impoundment of Loose Livestock

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Any person may impound loose livestock (N.C.G.S. §68-17). If the person observing loose livestock knows and is on good terms with the owner, the observer will typically alert the owner that the livestock is loose so that the animals may be quickly recaptured. Loose livestock are often reported by a passing observer to the county sheriff, and a responding officer is often placed in the challenging position of deciding whether to try to wrangle the animal and return it to its known owner or, if the owner is unknown, decide where to put the animal to protect public safety. If the owner is not known or if the livestock are far from their known farm, it is likely that the animals will be impounded in a county facility or with a private party with proper facilities for care and containment. Prior to legally re-taking possession, the owner of the animals must reimburse the party caring for impounded animals for costs of care and any damage caused by the animals; the impounder may retain the animals until such monies are paid (N.C.G.S. §68-17).

Failing to adequately care for the impounded animals is a Class 3 misdemeanor (N.C.G.S. §68-22). If it becomes known that impounded livestock have not been fed and watered over a 24-hour period, any person may enter the land where they are impounded and feed and water them without constituting criminal penalty or liability for trespass (N.C.G.S. §68-23).

When the owner of the loose livestock is known, the impounder is required to immediately notify the owner and alert them to any costs owed to the impounder (N.C.G.S. §6818). If the owner is not known or cannot be found, the impounder must notify the sheriff’s office of the impoundment, describing any marks and tags on the animal and when and where the animal was found (N.C.G.S. §6818.1).

If the owner is known and does not respond within three days to the notification that the impounder has the livestock, the impounder may post a notice of sale at the courthouse and three other places in the township (a geographic subdivision of a county) where the owner lives, and after ten days may auction the livestock. (The statute is silent regarding what level of evidence an impounder must produce [if later challenged] to establish his knowledge of the livestock owner’s identity.)

If the owner quickly emerges to claim the livestock but disagrees with the impounder on the amount owed for care of the animal(s) and any damage caused by the animal(s), the dispute is referred to a three-person panel consisting of 1) a landowner chosen by the owner, 2) a landowner chosen by the impounder, and 3) a disinterested landowner chosen by the first two landowners. If within 10 days, two of the three people on the panel cannot agree on the costs, or either the owner or impounder fails to pick a designated landowner, or if the third person is not chosen by the landowners (that is, agreed to by the owner and impounder), then the clerk of court appoints a referee to determine the costs (essentially removing any input from owner and impounder) (N.C.G.S. §68-19). The statute is not clear when the 10-day deadline starts or how the clerk is to be specifically notified of the matter.

Once the costs are determined and notice of amount is received by the owner, the owner has three days to pay the costs and reclaim the animal. If he does not, the impounder notifies the sheriff’s office, which then places a notice of sale on its official website; if after 10 days the owner has not paid the costs and reclaimed the animal(s), the impounder bears responsibility to sell the livestock at public auction (N.C.G.S. §68-20). If the owner attempts to release the livestock without the impounder’s permission, the owner may be charged with a Class 3 misdemeanor (N.C.G.S. §68-21). Likewise, the same criminal penalty is applied to an impounder who fails to adequately feed and water the animal(s) (N.C.G.S. §68-22). If the impounder fails to fulfill this obligation, a third party may enter the property to water and feed the animal without criminal penalty or liability for trespass (N.C.G.S. §68-23).

As such, a person’s decision to impound and make safe loose livestock — as a public service — does involve some measure of statutory responsibility.

A note about poultry: Though poultry is not specified in the livestock definition, if a person’s domestic fowl are loose in another person’s field or “ornamental garden” and the owner receives notice of such trespass, the owner is guilty of a Class 3 misdemeanor. If the owner does not collect the fowl after three days, a local judge may order the sheriff to kill the loose fowl (N.C.G.S. §68-25). The N.C. Department of Agriculture & Consumer Services (NCDA&CS) promulgated an administrative rule that requires poultry owners to contain poultry within their property boundary, though this requirement carries no particular enforcement authority by NCDA&CS and does not create criminal enforcement jurisdiction by local law enforcement.

Off-Farm Injury From Loose Livestock

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Loose livestock poses a safety hazard to motorists on public rights-of-way. For example, a driver may hit an animal broadside in the road; a driver may swerve to avoid hitting an animal and hit a tree or drive into a ditch; a driver may hit another vehicle while trying to avoid an animal in the road; or a driver may be rear-ended by another driver after stopping suddenly to avoid hitting an animal in the road. The probability of such incidents is common enough that personal injury law firms advertise services for injuries related to livestock.

A livestock owner is not strictly liable to others for injuries caused by livestock on or off-farm (Griner v. Smith, 1979), meaning that the incident of escape and resulting injury does not itself obligate an owner to pay the injured party for damages to their property and person. Rather, liability is based in common law negligence theory, which requires a measure of foreseeability of injury and a requirement that the owner has managed livestock in a “reasonable and prudent” way to prevent injury. In Gardner v. Black (1940), the N.C. Supreme Court summarized the legal standard this way:

“The liability of the owner of animals for permitting them to escape upon public highways, in case they do damage to travelers or others lawfully thereon, rests upon the question whether the keeper is guilty (sic) of negligence in permitting them to escape ... In such a case the same rule in regard to what is and what is not negligence obtains as ordinarily in other situations ... It is the legal duty of a person in charge of animals to exercise ordinary care and the foresight of a prudent person in keeping them in restraint.”

Thus, a person injured by livestock must prove to a jury’s satisfaction that the owner should have foreseen — as would a reasonable person — the possibility of an injury if an animal got loose, yet took unreasonably inadequate steps to prevent the injury. The plaintiff does not have to prove that the owner actually knew the livestock was loose, but may present evidence to demonstrate awareness that escape is not a remote possibility, such as testimony of an animal’s past escapes (Kelly v. Willis, 1953). Such determinations of owner knowledge rely heavily on a fact inquiry into past events concerning the animal and the owner’s steps to contain it.

Regarding submitted evidence that demonstrates negligence of a livestock owner, North Carolina cases illustrate relevant facts that have had bearing on a case’s outcome. In the 2008 unpublished opinion of Bynum v. Whitley, the N.C. Court of Appeals held that the question of a horse owner’s negligence was a proper question for the jury where evidence had been submitted to show that the owner had removed barbed wire from a fence, with the horse’s having pushing over the fence in wet weather before electric fencing could be added. Though evidence may be submitted to show awareness of escape or lack of sufficient confinement, the plaintiff must still tie the injury to the escape. In Wilmoth v. Hemric (2014), the N.C. Court of Appeals found that evidence submitted to show a delay in an owner’s search for livestock after learning they were missing — meant to establish knowledge and consent of their freedom — was not tied specifically to the plaintiff’s injury by one of the livestock and was therefore irrelevant.

Even though there is a law against allowing animals to roam free (see previous discussion of Fence Law), the mere fact of an animal escaping does not constitute liability. Though often violation of a public safety statute by a defendant can create a prima facie case of negligence, North Carolina has rejected this “negligence per se” theory in which “escape equals misdemeanor equals negligence” in relation to the state's livestock law (Hill v. Moseley, 1941).

Based on a review of cases, best practices for a livestock owner to defend against negligence claims in these types of cases should include

  • keeping a photographic or video record of fence type and repairs (to include a log book of fence inspections, particularly after storms);
  • keeping a record of owner visits to that farm during the week (if livestock are kept on a farm away from the owner’s residence) and results of a livestock count;
  • keeping gates locked and a record of who has the key or combination; and
  • making the aforementioned routine steps part of employee job descriptions.

If an escaped animal injures someone directly or via traffic interaction on a right-of-way, documentation will be key to convince a jury that you as the owner took prudent, reasonable steps to keep livestock contained and that, given your diligence, escape wasn’t foreseeable.

Injury by Livestock on the Farm

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Liability for animal-related injuries to invitees to the farm — a risk in agritourism and other settings, including employment — is more likely to turn on both the imputed knowledge of a potentially dangerous animal and the farmer’s reasonable efforts to contain an animal that the farmer should have had a reason to believe is or could be dangerous. (Note that the following discussion does not include the body of case and statutory law concerning vicious dogs).

Earlier in North Carolina’s history, injury by a vicious animal was subject to strict liability (Hill v. Moseley, 1941). However, by the early 20th century, the rule had evolved to a negligence standard. The “modern” general rule of animal injury negligence was stated by the N.C. Court of Appeals in Rector v. Coal Co. (1926): "The liability of an owner for injuries committed by domestic animals, such as dogs, horses, and mules, depends upon two essential facts: (1) The animal inflicting the injury must be dangerous, vicious, mischievous, or ferocious, or one termed in the law as possessing a ‘vicious propensity.’ (2) The owner must have actual or constructive knowledge of the vicious propensity, character, and habits of the animal." An injured visitor or employee alleging negligence must demonstrate both these conditions, which requires introducing allowable evidence to prove knowledge or a decision to expose someone to the animal that falls short of reasonable and prudent judgement.

As to the first requirement concerning the owner’s appreciation of the nature of a species, the owner is generally “chargeable with knowledge of the general propensities of certain animals” (Griner v. Smith, 1979). Such knowledge can be imputed to the defendant regardless of the character of an individual animal (Thomas v. Weddle, 2004). While this rule is usually associated with vicious dog cases, it has been applied to injury by livestock (horse), in which the N.C. Supreme Court amplified the Rector ruling by stating that “knowledge of the general propensities of the horse would include the fact that the horse might kick without warning or might inadvertently step on a person. … This is just the nature of the animal, and such behavior does not necessarily indicate that the horse is vicious” (Williams v. Tysinger, 1991). In Williams, the Court held that evidence of actual or constructive knowledge of an animal’s vicious propensities is not required to prove negligence.

For injuries that are not proximately caused by the vicious nature of an animal, evidence of knowledge — imputed or actual — about whether a particular animal has exhibited previous dangerous behavior (due to past behavior or assumptions about the species) becomes secondary in importance. Rather, the more valuable evidence addresses the question of whether the owner negligently permitted a person to come in contact with the farm animal. That a horse may kick or a bull may gore or a rooster may scratch might be inferred to the owner, who is then judged on the decision to allow someone near a farm animal (or not otherwise prevent that person’s approach). In effect, all animals by weight, strength of kick, or sharpness of claw can be considered dangerous and raise an inquiry into the owner’s reasonableness in letting this plaintiff near an animal. In Sibbett v. M.C.M. Livestock, Inc. (1978), the N.C. Court of Appeals summarized the rule this way:

"One who keeps a domestic animal which possesses only those dangerous propensities which are normal to its class is required to know its normal habits and tendencies. He is, therefore, required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm.”

Visitor Liability Defense Statues: N.C.G.S. Chapter 99-E

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Beyond prudent containment efforts and liability insurance, the most important defense in North Carolina against on-farm injury by animals involve three “visitor liability defense” statutes concerning livestock generally, equine operations, and agritourism operations. These statutes can be found at N.C. General Statutes Chapter 99E: Special Liability Provisions. The three farm statutes operate to limit the liability of a livestock owner or operator for injuries “inherent” in an equine, livestock, or agritourism operations on a theory of assumption of the risk by the visitor to the farm. The three statutes have one central requirement: the farm owner or operator must post signage with a warning prescribed in each statute. The statutes do not excuse an owner or operator from negligent behavior in proximity causing an injury. These statutes merely provide a shield against liability for a class of causes considered “inherent” on a farm, and thus contemplate injuries that might occur as would to anyone visiting a farm and choosing to ride or otherwise be near farm animals and machinery.

Like a liability waiver, the statutes require the operator to warn visitors, clients, and customers that they are entering a farm or engaging with animals, and that such engagement has inherent risks. The sign must be prominently displayed, with language warning the visitor to proceed at his or her own risk. The requirement that the sign be prominently displayed creates a presumption that the visitor saw the sign, processed the warning, and proceeded with the visit. The visitor is agreeing and is presumed to appreciate the risk and assess the consequences of participation in activities or being in proximity to inherent risks. These three liability mitigation statutes are discussed in more depth in Extension publication AG 895-01 Liability Defenses for Injury of Farm Visitors.

Animal Injury to Trespassers

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A few final notes are applicable to exposure to liability for animal injury to a trespasser. In general, negligence tied to injury of invited visitors requires evidence that a landowner breached the "duty to exercise reasonable care in the maintenance of (his) premises for the protection of lawful visitors" (Nelson v. Freeland, 1998). “Reasonable care” requires that the landowner not unnecessarily expose a lawful visitor to danger and give warning of hidden hazards of which the landowner has express or implied knowledge" (Thomas v. Weddle, 2004). However, a landowner owes no such duty to trespassers, defined by Nelson as any person who invades one’s real property without express or implied permission. A common occurrence on private land is injury to trespassers by dog attack. Though North Carolina’s “dangerous dog” statute assigns owner responsibility for confinement of and injury by dogs deemed vicious by county animal control (based on investigation and hearing), it specifically exempts dogs involved in attack upon trespassers. Specifically, the statute does not consider a dog vicious in attacking “… a person who, at the time of the injury, was committing a willful trespass or other tort … or was committing or attempting to commit a crime” (N.C.G.S. § 67-4.1[b][4]).

Regarding injury by fenced livestock to a trespasser, the question in such a case may rest on the landowner’s knowing that trespass was a common occurrence yet making no efforts to reasonably prevent or discourage it. For example, where it is common practice for area residents to access a swimming hole across private pasture, permission may be implied if the owner neglects to put up signage, confront trespassers, or report them to the sheriff’s office. If such permission is implied, the livestock owner’s duty of reasonableness in warning visitors of hidden hazards might apply.

Conclusion

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As with all legal risk management, the key to avoiding ultimate liability (or getting a case dismissed before it reaches a jury) comes down to documentation. When defending against a liability claim, backing your attestations about safety and awareness with good documentation (for example, contemporaneous logs or written records, photographs of signage, video of repairs made, and repair receipts) will support your legal position that you acted as would a reasonable and prudent person in like circumstances. For livestock escape, the statutory penalty provides incentive to adequately fence livestock. If an escaped animal causes damage, documentation of your fencing; any notes concerning fencing sufficiency from Cooperative Extension livestock agents; repairs to electric fencing; and records of inspection of power components (for example, solar boxes) are examples of actions that will help establish that you used reasonable efforts to contain an animal, even one that had gotten loose before. To avoid on-farm injury, it is advisable that any vicious animals or animals with a sketchy history around people or noise be securely contained and kept away from customers. Signage required by 99E should be documented and filed, as it is possible this may be one of the first questions asked by a judge: “What evidence can you show me that you had signs posted at the time of the injury?”

Cases Cited

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Bynum v. Whitley, 188 N.C. App. 632 (N.C. Ct. App. 2008) (unpublished opinion)

Hill v. Moseley, "220 N.C. 485, 17 S.E.2d 676 (1941)

Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711 (1953)

Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10 (N.C. 1940)

Griner v. Smith, 43 N.C. App. 400, 259 S.E.2d 383 (1979)

Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998)

Rector v. Coal Co., 192 N.C. 804, 807, 136 S.E. 113, 116 (1926)

Sibbett v. M.C.M. Livestock, Inc., 37 N.C. App. 704, 247 S.E.2d 2 (1978)

Thomas v. Weddle, 167 N.C. App. 283, 605 S.E.2d 244 (2004)

Williams v. Tysinger, 328 N.C. 55, 60, 399 S.E.2d 108, 11 (1991)

Wilmoth v. Hemric, 237 N.C. App. 595, 768 S.E.2d 570 (2014)

Acknowledgment

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This publication is funded under Grant # 2019-001-16 from the Tobacco Trust Fund Commission.

Author

Extension Assistant Professor (Agricultural and Environmental Law)
Agricultural and Resource Economics

Publication date: July 27, 2021
AG-895-02

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