Day on Torts
The Court of Appeals of Mississippi has ruled that a plaintiff injured when her vehicle collided with a horse on a dark roadway must prove that the horse owner was negligent is allowing the horse to be on the road. In other words, the mere fact that the fence did not hold the animal on the owner’s property was not, in an of itself, proof of negligence of the owner.
Defendant landowner proved that he had appropriately fenced in the horses and they had been secure in the fence for over two years. He had no explanation for how or why the horses had knocked down the fence and escaped. The Court of Appeals said his proof entitled him to summary judgment, since plaintiff
did not produce any evidence, such as testimony, exhibits, expert opinions, product warnings, or recognized industry standards, to rebut Hester’s evidence that the field fence was adequate for containing horses under the circumstances. The "[nonmoving] party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict."
The dissent said a jury question was present on the issue of whether the fence was adequate, explaining defendant had the burden of persuasion and production to show that he was not negligent in the choice of fence wire that he used to construct the fence, as it is his responsibility to show that he is entitled to summary judgment as a matter of law. The dissent argued that defendant could not make that showing without producing uncontradicted evidence showing that he was not negligent.
The case is Ladnier v. Hester, No. 2010-CA-01267-COA (MS Ct. App. Oct. 12, 2011).