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21. If the facts stated above are undisputed, the judge should
The driver sued the rancher to recover damages for his injuries and the rancher moved for summary judgment.
For five years, a rancher had kept his horse in a ten-acre field enclosed by a six-foot woven wire fence with six inches of barbed wire on top. The gate to the field was latched and could not be opened by an animal. The rancher had never had any trouble with people coming onto his property and bothering the horse, and the horse had never escaped from the field. One day, however, when the rancher went to the field, he found that the gate was open and the horse was gone. Shortly before the rancher's discovery, a driver was driving with due care on a nearby highway when suddenly the rancher's horse darted in front of his car. When the driver attempted to avoid hitting the horse, he lost control of the car, which then crashed into a tree. The driver was injured.
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A motion for summary judgment will be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A and C are opposite sides of the res ipsa loquitur (RIL) argument. The doctrine of RIL is generally applied in situations where negligence clearly occurred and (i) the defendant had exclusive control of the instrumentality during the relevant time, and (ii) the plaintiff shows that he was not responsible for the injury. The court is not required to infer negligence and no presumption is created; RIL merely permits the fact finder to infer negligence from the facts. Thus, either A or C could be correct, depending on the determination of the judge. Most jurisdictions hold that a plaintiff is not entitled to summary judgment merely because the defendant did not rebut a RIL case. In this situation, however, the defendant made the motion.
B is incorrect. The horse is livestock. As such, in common law, the rancher would be held in strict liability for its trespass. Under the Restatement (Second) of Torts, however, (§506) the horse would be considered a domestic animal and negligence would have to be proved before the driver could recover damages (unless the horse had a known propensity to escape, which is not the case in this situation). An animal «dangerous to highway users» is not a category.
D is incorrect. The issue is negligence, not intentional trespass.