Mandate Issued: 12/05/2017
FROM THE DISTRICT COURT OF OSAGE COUNTY, OKLAHOMA HONORABLE
JOHN KANE, TRIAL JUDGE
Charles Scott Loftis, Ponca City, Oklahoma, for
J. Goodman, LAWSON & SHELTON, P.L.L.C., Tulsa, Oklahoma,
JACK GOREE, PRESIDING JUDGE
Plaintiff/Appellant, Jerry Thompson, was injured when his
motor vehicle struck a cow owned by Defendant/Appellee, J.
Paul Williams. Plaintiff alleges that Defendant's fence
did not meet the height requirements of Title 4 O.S. 2011
§154 and the violation was, in itself, negligence. We
apply Champlin Refining Co. v. Cooper, 1938 OK 652,
86 P.2d 61, and hold that violation of §154 does not
constitute negligence per se because bodily harm from a motor
vehicle accident is not the type of injury intended to be
prevented by the statute, and Plaintiff is not within the
class of persons the Legislature intended to protect when it
enacted §154 of the Herd Law in 1910. The trial court
correctly granted summary judgment and we AFFIRM.
In 1910 the Legislature adopted amendments to an act commonly
called the Herd Law. Still in effect, Title 4 O.S. 2011
§154 describes with precision the requirements for a
lawful fence.  Plaintiff argues Defendant is liable
for negligence because portions of his fence are less than 54
inches in height and, he urges, it can be inferred that he
was injured because the cow jumped over the fence.
To recover for negligence, a plaintiff must prove (1) a duty
owed by the defendant to protect the plaintiff from injury,
(2) a failure to properly perform that duty, and (3) the
plaintiff's injury was proximately caused by the
defendant's breach. Lockhart v. Loosen, 1997 OK
103, ¶9, 943 P.2d 1074. Ordinarily, reasonable care
duties arise from the common law. But the negligence per se
doctrine substitutes statutory standards for the common law.
Howard v. Zimmer, Inc., 2013 OK 17, ¶13, 299
P.3d 463, 467. In other words, the statute itself comprises
the duty and its violation constitutes the breach.
Not every statute can substitute for the common law standard
of care. A statute's violation is deemed negligence per
se if the claimed injury (a) was caused by the law's
violation, (b) was of the type intended to be prevented by
the statute, and (c) the injured party was a member of the
class meant to be protected by the statute.
Lockhart, ¶6. The determinative issue of law in
this appeal from a summary judgment is whether violation of
§154 constitutes a negligent breach of the standard of
Summary judgment procedure is governed by 12 O.S. 2011
§2056 and Rule 13 of the Rules for District Courts of
Oklahoma. 12 O.S.Supp. 2013, Ch. 2, App. 1. It is a process
that settles only questions of law and therefore the standard
for review is de novo. Horton v. Hamilton,
2015 OK 6, ¶8, 345 P.3d 357, 360. According to
§2056(C), summary judgment can only be granted where
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.
Id at ¶17.
The fundamental rule of construction is to ascertain and give
effect to the intention of the Legislature as expressed in
the statute under consideration. Champlin, ¶7.
In Oklahoma Territory, and for many years after statehood,
cattle were lawfully permitted to range at large. Bottoms
v. Clark, 1913 OK 367, ¶2, 132 P. 903, 905. It was
inevitable that trespassing livestock would occasionally
damage another's crops. The Legislature enacted law
enabling a party to recover damages done by trespassing
cattle, but only when his crops were enclosed by a lawful
fence. Bottoms, ¶0, court syllabus 3. On the
open range, cattlemen were not required to fence in their
stock -- farmers were required to fence them out. The burden
of proof was on the crop owner to prove that his fence was
lawful and the cattle breached it. Bottoms, ¶3.
Section 154 contains the criteria for a lawful fence.
In Champlin, the Supreme Court held that the Herd
Law was enacted for the purpose of protecting agricultural
crops and not to protect motorists traveling upon the public
highway from domestic animals. We follow Champlin
and hold that the type of injury envisioned by §154 was
damage to crops and not bodily injury from an automobile
accident. The members of the class intended to be protected
by §154 were land owners in the free-range era and not
modern highway motorists.
If Defendant constructed a fence that did not meet the
specifications of §154, his act was not negligence per
se and the trial court's grant ...