McLaughlin Freight Lines v. Gentrup

Mc L aughLin F reight L ines , inc.,
an iowa corporation, appeLLant,
v. M arvin gentrup, appeLLee .
798 N.W.2d 386
Filed June 10, 2011. 	No. S-10-637.
1. Summary Judgment. Summary judgment is proper where the facts are uncontro-
verted and the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.
4. Negligence: Presumptions. The doctrine of res ipsa loquitur is an exception to
the general rule that negligence cannot be presumed. Res ipsa loquitur is a pro-
cedural tool that, if applicable, allows an inference of a defendant’s negligence to
be submitted to the fact finder, where it may be accepted or rejected.
5. Negligence: Proof. There are three elements that must be met for res ipsa loqui-
tur to apply: (1) The occurrence must be one which would not, in the ordinary
course of things, happen in the absence of negligence; (2) the instrumentality
which produces the occurrence must be under the exclusive control and manage-
ment of the alleged wrongdoer; and (3) there must be an absence of explanation
by the alleged wrongdoer.
6. Courts: Negligence: Proof. The trial court should not weigh the evidence to
determine whether res ipsa loquitur applies. Instead, the court must determine
whether there is sufficient evidence from which reasonable persons could find
that it is more likely than not that the three elements of res ipsa loquitur have
been proved and that it is therefore more likely than not that there was negligence
associated with the event.
Appeal from the District Court for Cuming County: robert b.
ensz, Judge. Reversed and remanded for further proceedings.
Damien J. Wright, of Welch Law Firm, P.C., for appellant.
Todd B. Vetter, of Fitzgerald, Vetter & Temple, for appellee.
heavican, c.J., connoLLy, gerrard, stephan, MccorMack,
and M iLLer-L erMan, JJ.
gerrard, J.
This appeal rises out of a collision between a semi-trailer
truck owned by McLaughlin Freight Lines, Inc. (McLaughlin),
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

and cattle owned by Marvin gentrup. After the accident,
McLaughlin filed this suit, seeking recovery for damages to
its truck. McLaughlin’s sole theory of recovery was premised
on the doctrine of res ipsa loquitur. gentrup moved for sum-
mary judgment. After a hearing, the district court determined
that pursuant to Neb. Rev. Stat. § 25-21,274 (Reissue 2008),
the fact that gentrup’s livestock escaped was not by itself suf-
ficient to raise an inference of negligence against gentrup, and
sustained gentrup’s motion.
McLaughlin appeals. The primary issues presented on appeal
are (1) whether the district court correctly applied the common-
law principles of res ipsa loquitur and (2) whether § 25-21,274,
which provides that the fact of escaped livestock is insufficient
to raise an inference of negligence, supplants those common-
law principles.
BACkgRouND
on the evening of May 13, 2009, gentrup placed six cattle
into a holding pen near his residence. Shortly after midnight
on May 14, McLaughlin’s truck collided with gentrup’s cattle
on Nebraska State highway 32. Though the driver of the truck
was unharmed, the truck sustained damage. McLaughlin then
filed this suit. gentrup filed a motion for summary judgment,
citing § 25-21,274 as support, and the following evidence was
adduced at hearing:
The holding pen in which gentrup had confined his cattle
was 50 by 80 feet, constructed of steel, and secured to the
ground by steel posts which were cemented into the ground.
gentrup testified that to secure the pen’s gate, he wraps a chain
around the gate once and places the chain into a latch. gentrup
stated that he then hangs the excess chain on the outside of the
pen to prevent the cattle from disturbing it. gentrup testified
that on May 13, 2009, he put six cattle in the pen and secured
the gate in his usual manner. gentrup stated that though none
of his cattle had ever “licked” or “rubbed [the chain] off” pre-
viously, he had heard of it happening to other ranchers and
believed this was the most probable explanation for the escape
of his livestock. Affidavits submitted by two cattle producers
stated that the latching system used by gentrup was common
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in the industry. gentrup stated that he had used the pen since
1993 without any cattle escaping.
Following the accident, gentrup inspected the pen and found
the fence intact, though the gate was open and all six cattle had
escaped. gentrup found two of his cattle dead on the highway;
the other four were found alive in a nearby field.
At hearing, McLaughlin agreed that its sole theory of recov-
ery was based upon res ipsa loquitur, as McLaughlin had no
direct evidence of gentrup’s alleged negligence. The court
noted that where the defendant presented uncontroverted evi-
dence which indicated that there was no genuine issue of
material fact as to whether the cattle would ordinarily escape
through the gate in the absence of negligence, § 25-21,274 pre-
cluded McLaughlin’s suit. McLaughlin appeals.
ASSIgNMeNT oF eRRoR
McLaughlin assigns, summarized and restated, that the
district court erred when it granted summary judgment in
gentrup’s favor.
STANDARD oF ReVIeW
[1,2] Summary judgment is proper where the facts are
uncontroverted and the moving party is entitled to judgment as
a matter of law.1 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to
the party against whom the judgment was granted, giving that
party the benefit of all reasonable inferences deducible from
the evidence.2
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.3
ANALySIS
McLaughlin’s argument depends on the common-law tort
doctrine of res ipsa loquitur. gentrup’s argument, on the other
1 Perez v. Stern, 279 Neb. 187, 777 N.W.2d 545 (2010).
2 Id.
3 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
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hand, depends upon § 25-21,274. We begin by reviewing the
common-law doctrine and our relevant case law. Then, we must
determine the effect that § 25-21,274 has on that analysis.
res ipsa L oquitur
[4,5] The doctrine of res ipsa loquitur is an exception to
the general rule that negligence cannot be presumed.4 Res
ipsa loquitur is a procedural tool that, if applicable, allows an
inference of a defendant’s negligence to be submitted to the
fact finder, where it may be accepted or rejected.5 There are
three elements that must be met for res ipsa loquitur to apply:
(1) The occurrence must be one which would not, in the ordi-
nary course of things, happen in the absence of negligence;
(2) the instrumentality which produces the occurrence must
be under the exclusive control and management of the alleged
wrongdoer; and (3) there must be an absence of explanation by
the alleged wrongdoer.6 We have noted that, in res ipsa loqui-
tur cases,
“[t]he plaintiff is not required to eliminate with certainty
all other possible causes or inferences, which would mean
that the plaintiff must prove a civil case beyond a reason-
able doubt. All that is needed is evidence from which
reasonable persons can say that on the whole it is more
likely that there was negligence associated with the cause
of the event than that there was not. It is enough that the
court cannot say that the jury could not reasonably come
to that conclusion. Where no such balance of probabilities
in favor of negligence can reasonably be found, res ipsa
loquitur does not apply.”7
[6] When deciding whether res ipsa loquitur applies, a court
must determine whether evidence exists from which reasonable
4 See Roberts v. Weber & Sons, Co., 248 Neb. 243, 533 N.W.2d 664
(1995).
5 See id.
6 See id.
7 Anderson v. Service Merchandise Co., 240 Neb. 873, 880, 485 N.W.2d
170, 176 (1992) (quoting W. Page keeton et al., Prosser and keeton on the
Law of Torts § 39 (5th ed. 1984)).
728 	281 NeBRASkA RePoRTS

persons can say that it is more likely than not that the three
elements of res ipsa loquitur have been met. If such evidence
is presented, then there exists an inference of negligence which
presents a question of material fact, and summary judgment is
improper.8 The court should not weigh the evidence to deter-
mine whether res ipsa loquitur applies. Instead, the court must
determine whether there is sufficient evidence from which rea-
sonable persons could find that it is more likely than not that
the three elements of res ipsa loquitur have been proved and
that it is therefore more likely than not that there was negli-
gence associated with the event.
In Roberts v. Weber & Sons, Co.,9 we decided that res ipsa
loquitur could apply in escaped livestock cases, and because
of factual similarities that will become apparent, Roberts bears
examining in some detail. The Roberts plaintiff’s vehicle hit sev-
eral of the defendant’s cattle on a public highway at night, and
filed suit, proceeding on a res ipsa loquitur theory. According
to the defendant, the pen from which his cattle escaped was
constructed of 2-inch steel pipe embedded in concrete with a
2-inch toprail and a “sucker rod” welded on the inside to the
pen. The defendant claimed that his cattle pressed up against
a gate, breaking the top hinge on the gate, which allowed the
cattle to crawl over the gate and escape. The district court sub-
mitted the issue of res ipsa loquitur to the jury, which returned
a verdict in favor of the plaintiff.
on appeal, we upheld the submission of a res ipsa loquitur
instruction to the jury, holding that res ipsa loquitur could be
applicable in escaped livestock cases depending on the fac-
tual situation presented. We noted that in order to determine
whether res ipsa loquitur was applicable, the three elements of
the doctrine must be examined. We then analyzed the first ele-
ment, whether the occurrence was one which would not, in the
ordinary course of things, happen in the absence of negligence.
We determined that there was evidence that the construction of
8 See Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783
(1998).
9 Roberts v. Weber & Sons, Co., supra note 4.
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the pen was state of the art and that when the pen was inspected
the day before the accident, everything was secure. Noting that
cattle would not ordinarily escape such an enclosure in the
absence of negligence, we held that the plaintiff satisfied his
burden with regard to the first element.
The Roberts defendant conceded that the second element
was met, so we next examined whether the plaintiff presented
evidence to satisfy the third element, the absence of an expla-
nation by the defendant as to how the cattle escaped. Though
the defendant claimed that he had such an explanation—that
the cattle escaped after breaking the top hinge on the gate—we
noted that the plaintiff presented evidence regarding the condi-
tion of the gate, the bottom hinge, and the chain securing the
gate from which the jury reasonably could have concluded that
the defendant’s explanation was not credible.
Though the instant case is similar to Roberts, the court here
determined that gentrup’s fencing and gates were not shown
to be a state-of-the-art system as discussed in Roberts, and
determined that gentrup satisfied his burden of showing that
there was no genuine issue of material fact because he estab-
lished that cattle could escape through the gate in the absence
of negligence. But the record does not unambiguously support
the court’s determination.
The record reflects that gentrup stated that he had used the
cattle pen since 1993 without any cattle escaping, that he did
not notice his cattle behaving out of the ordinary when the
cattle were placed in the pen, that he did not notice any animals
in the vicinity which may have spooked the cattle, and that his
inspection of the pen after the accident revealed that the pen’s
fences were intact, though the chain to the gate was unlatched
and the gate was open. And the fence at issue here is a steel
cattle fence with “sucker rods,” which is secured to the ground
with posts embedded in cement, similar to the fence in Roberts.
Affidavits also indicated that gentrup’s cattle pen was standard
in the industry. From those facts, a reasonable jury could deter-
mine that cattle do not escape enclosures such as gentrup’s in
the absence of negligence. And though the record also reflects
that gentrup stated that he secured and latched the chain to the
gate and placed the excess chain outside of the fence so that
730 	281 NeBRASkA RePoRTS

the cattle could not lick or rub it, ultimately, the question is one
properly decided by a jury.
on appeal, we review the evidence in the light most favor-
able to the party against whom summary judgment was granted,
giving that party the benefit of all reasonable inferences deduc-
ible.10 As the party moving for summary judgment, it was
gentrup’s burden to establish that there was no genuine issue
of material fact with regard to one or more of the elements of
res ipsa loquitur. Because evidence exists from which a reason-
able person could determine that it was more likely than not
that the escape of gentrup’s cattle was an occurrence which
would not, in the ordinary course of things, happen in the
absence of negligence, the trial court’s order granting summary
judgment in gentrup’s favor was incorrect—unless § 25-21,274
changes the principles of common-law res ipsa loquitur upon
which that conclusion depends.
§ 25-21,274
gentrup argues that § 25-21,274 prevents the application
of res ipsa loquitur in this case. Section 25-21,274 reads, in
relevant part:
In any civil action brought by the owner, operator, or
occupant of a motor vehicle or by his or her personal
representative or assignee or by the owner of the livestock
for damages resulting from collision of a motor vehicle
with any domestic animal or animals on a public highway,
the following shall apply:
. . . .
. . . [t]he fact of escaped livestock is not, by itself,
sufficient to raise an inference of negligence against
the defendant[.]
gentrup argues that § 25-21,274 effectively abolished the
application of res ipsa loquitur to escaped livestock cases
where there is no other evidence of negligence. But here,
McLaughlin has other evidence which, in conjunction with the
fact that livestock escaped, raises an inference of negligence.
Section 25-21,274 states that “escaped livestock is not, by
10 See Perez v. Stern, supra note 1.
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itself, sufficient to raise an inference of negligence.” (emphasis
supplied.) As described above, there is more evidence here than
simply the fact of escaped livestock: There is evidence of the
construction of the pen, its successful use over a number of
years, and gentrup’s inspection of the pen following the escape.
And, as described above, that evidence, together with the fact
of the escape, would support an inference of negligence.
our interpretation is consistent with the legislative history
of § 25-21,274. After our decision in Roberts, 2001 Neb. Laws,
L.B. 781, was introduced and was intended to codify the state
of our res ipsa loquitur law after the Roberts decision in order
to resolve some apparent confusion in the Legislature and
among members of the public about what Roberts had actually
meant. So, at the beginning of the floor debate for L.B. 781,
the chairman of the Judiciary Committee explained:
Now I want to be clear for the record . . . the committee
amendments which become the bill, are essentially a codi-
fication of existing case law as decided by the Nebraska
Supreme Court, and that is the intent. The amendment
does not prohibit the principle or the application of the
doctrine of res ipsa loquitur . . . but this does provide a
codification and clarification responsive to the concerns
of any number of Nebraskans, particularly those in the
livestock industry. The committee amendment strikes a
balance on the subject. The amendment does not reverse
the Supreme Court decision, I say again. The committee
amendment will provide guidance for courts . . . on these
negligence claims and will specify that the plaintiff is to
prove the plaintiff’s claim under ordinary negligence law.
Additionally, the amendment clarifies that escaped live-
stock in and of itself is not a . . . sufficient fact to raise an
inference against the defendant.11
Section 25-21,274 therefore does not displace the three ele-
ments of res ipsa loquitur as discussed in Roberts and does not
prevent a res ipsa loquitur jury instruction in appropriate cir-
cumstances. Section 25-21,274 simply clarifies (consistent with
11 Floor Debate, 97th Leg., 1st Sess. 4957-58 (Apr. 18, 2001).
732 	281 NeBRASkA RePoRTS

Roberts) that the fact of escaped livestock is, standing alone,
insufficient to raise an inference of negligence against gentrup.
however, as discussed, because McLaughlin presented other
evidence in conjunction with the fact of escaped livestock,
§ 25-21,274 does not bar McLaughlin’s claim.
CoNCLuSIoN
For the foregoing reasons, we reverse the judgment of the
district court and remand the cause for further proceedings
consistent with this opinion.
reversed and reManded For
Further proceedings.
wright, J., not participating.
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