Summary of a Recent
Judicial Development in
Landowner Liability

No Express Assumption of the
Risk Defense in Statute

Randal Busby
National AgLaw Center Research Assistant

In an action for strict liability in trespass brought by a ranch hand against the owner of an adjoining ranch as a result of injuries he suffered while handling a bull that escaped from the adjoining ranch, the Supreme Court of Montana has ruled that the owner of the adjoining ranch could not raise the defense of assumption of risk because the statute governing the liability of livestock owners for trespass did not expressly state that the assumption of the risk defense was available. Madrid v. Fifth Judicial Dist. Court, 60 P.3d 438 (Mont. 2002).

Plaintiff, Julio Madrid, was a ranch hand on a ranch adjacent to another ranch known as Zenchiku Land and Livestock ("Zenchiku"). See id. at 439. Madrid brought an action for strict liability in trespass against Zenchiku after he was injured while removing a bull that had escaped from Zenchiku and entered Madrid's employer's land. See id. The trial court granted summary judgment in favor of Zenchiku, and Madrid appealed that decision to the Supreme Court of Montana. See id. (citing Madrid v. Zenchiku Land and Livestock, 51 P.3d 1137 (Mont. 2002)). The Supreme Court of Montana reversed the trial court, ruling that Mont. Code Ann. § 81-4-215, "imposed strict liability on owners of livestock for injuries sustained by persons injured by their trespassing livestock." Id. (citation omitted). It also remanded the matter back to the trial court "for a determination of the damages sustained by Madrid when he was injured by Zenchiku's trespassing bull." Id.

On remand, Zenchiku requested that it be allowed to raise the assumption of the risk defense, asserting that "even if the owner of livestock may be held strictly liable for another's injuries, the owner of the livestock may nonetheless seek to mitigate his liability by establishing that the plaintiff assumed the risk of his injuries." Id. The trial court granted this request, and Madrid appealed to the Supreme Court of Montana, seeking to have the trial court's decision reversed to allow Zenchuki to raise the assumption of the risk defense. See id.

Zenchiku argued that the Montana Supreme Court had always allowed a defendant to raise an assumption of the risk defense in strict liability cases. See id. at 440. The court confirmed that the argument was true for strict products liability cases because "such defense is expressly authorized by statute." Id. (citations omitted). The court stated, however, that "[a] different result is compelled here. We have previously held that if a strict liability statute does not expressly provide for the defense at issue, it may not be raised." Id. See Lutz v. National Crane Corp., 884 P.2d 455 (Mont. 1994); Stroop v. Day, 896 P.2d 439 (Mont. 1995).

Mont. Code Ann. § 81-4-215, provides as follows:

If any cattle, horses, mules, asses, hogs, sheep, llamas, alpacas, bison, or other domestic animals break into any enclosure and the fence of the enclosure is legal, as provided in 81-4-101, the owner of the animals is liable for all damages to the owner or occupant of the enclosure. This section may not be construed to require a legal fence in order to maintain an action for injury done by animals running at large contrary to law.

Id.

The court stated that the only defense supplied by § 81-4-215 "arises if the enclosure breached by the animal is not legal. No such defense existed here." Id. It added that "[b]ecause the statute does not expressly provide for an assumption of the risk defense . . . we conclude that the . . . [trial court] erred in allowing Zenchuki to interpose the defense of assumption of the risk, and the . . . [trial court] therefore has proceeded under a mistake of law." Id. It also remanded that matter back to the district court for further proceedings consistent with its decision. See id.

The case was decided on Dec. 22, 2002; this summary was posted Nov. 10, 2003.