Livestock Owner Liability to Motorists in an Open Range State

As published in BizWest’s Thought Leader Column, October 2022

Livestock owners are generally aware of the laws enacted that make Colorado a “fence out” or “open range” state. Many owners are also aware that they may be liable in some cases if their livestock enters a public roadway and damages a vehicle or injures a person. While an owner’s responsibility to keep livestock off public roads seems to contradict a non-owner’s responsibility to keep them fenced out, the lawmakers and courts have enacted laws to protect both livestock owners and the public.

The Colorado Fence Law that creates the “fence out” or “open range” requirements for livestock was enacted in 1877 and is still in place today. Previously, common law held livestock owners strictly liable for the damage caused by trespassing animals. However, the Fence Law placed the obligation on those who did not want the animals on their property to “fence out” livestock. Effectively, the Fence Law states that a livestock owner may allow their horses, cattle, mules, asses, goats, sheep, swine, buffalo, and cattalo to graze wherever there are no fences to keep them out and face no liability for doing so.

In 1970, however, the Colorado courts seemingly contradicted the Fence Law. The Colorado Supreme Court held that livestock owners may be liable for the damage caused if their stock enters a public roadway and causes damage to a vehicle or injures a motorist. Clearly, that counters the principle that anyone who does not want livestock on their property is responsible for fencing them out, ostensibly including municipalities, counties, and the State who are responsible for the public roadways.

According to one 1970 case, Millard v. Smith, the court held that the Fence Law did not explicitly protect the livestock owner from liability if their animals enter a public roadway. To hold that it did would expand the statute to provide protection beyond the purpose intended by the State legislature. Although that holding has negative implications for livestock owners, it allowed an opportunity for injured motorists who otherwise may not have a chance for recovery.

While the courts did open the door for livestock owner liability to motorists, they did not necessarily make it easy to bring a suit against them. The court in Millard also held that for an action to be brought against a livestock owner, a plaintiff must prove that some act of negligence caused the livestock to be on the highway. Further, the court clearly stated that that livestock on the roadway, in itself, does not make a livestock owner liable for negligence.

Holding livestock owners liable in certain circumstances does contradict the open range laws by essentially requiring them to keep their stock “fenced in” to keep them off public roads. However, it also provides motorists who are injured due to the negligence of the livestock owner an opportunity to recover the damages they incur.