The District Court of Colorado recently heard Plaintiff’s Motion for a New Trial Based on Insufficiency of Evidence Supporting the Verdict after a jury returned a verdict for the Defendants.

Defendants own and graze cattle on Parcel 079 (“the parcel”) located near a highway in western Colorado. The parcel was partially fenced by both the Colorado Department of Transportation (“CDOT”) and Defendants, but there were unfenced areas where cows could escape the property and wander onto the highway. This unfenced area was near natural barriers such as steep hill grades. Plaintiff was a passenger in a vehicle traveling on the highway when it struck a cow owned by Defendant that had recently been hit in a separate, unrelated automobile collision. Plaintiff was gravely wounded and lost her right arm. She sued for damages, alleging common law negligence.

Some of the material issues at trial were whether the cow had escaped from Parcel 079 and whether Defendants had used reasonable care in containing the cow from wandering onto the highway. The jury rendered a verdict in favor of Defendants. Plaintiff filed this Motion for New Trial, arguing that based on the evidence presented at trial, no reasonable jury could reach the verdict that Defendants weren’t negligent.

U.S. Magistrate Judge Nina Y. Wang wrote in her opinion that the jury rendered its verdict pursuant to a special verdict form, answering only one question concerning Defendants’ negligence. The question before the court posed by Plaintiff’s motion was whether the jury’s finding that Defendants were not negligent was “clearly, decidedly, or overwhelmingly against the weight of the evidence.”

The adequacy of Defendants’ livestock containment system on and actions with respect to Parcel 079 was thoroughly contested at trial. The parcel wasn’t completely fenced, and Defendants partially relied upon natural barriers to prevent the cows from leaving the parcel and/or straying onto the highway. There was substantial testimony on the feasibility of relying on natural barriers. Both sides relied on the report and testimony of an expert in land management, including inspection and condition of fencing, and a report on the parcel. On the question of relying on natural barriers to contain grazing cattle, the land management expert testified that farmers use natural barriers as fence-lines “quite regularly” and particularly on BLM land. He also testified that he found several areas along the natural barriers where a cow could get out, but no indication that Defendants’ cows had moved in those areas or escaped through those vulnerabilities.

Plaintiff relied on a livestock handling specialist, who testified that she reviewed “the containment of the animals for the […] ranch” and found “there wasn’t proper containment provided for the cattle that prevented them from getting out on the road; that there were poor management practices in place, especially in the area of fencing.” The expert formed this opinion without visiting the property. She testified that the containment system at the parcel was inadequate based on her examination of documentation and photographs of the land and the containment system. The expert further testified that she didn’t know if the cow at issue came from Parcel 079. Plaintiff asserted that the livestock handling expert “testified that Defendants were negligent.” However, the judge said it was more appropriate to discuss the livestock handling expert’ factual assumptions and expert opinions without intertwining legal conclusions and concepts.

A Ph.D. in Meat and Muscle Biology who was a ranch management consultant, also testified as an expert witness at trial. Defendants’ expert criticized Plaintiff’s expert’s report as being “from someone who doesn’t understand commercial cow/calf and ranching in the West and big operations.” Defendants’ expert testified that he’d found nothing concerning about Defendants’ ranching practices on the parcel. This expert testified that he believed the fencing around the parcel was adequate, that the natural barriers were sufficient, and that it wasn’t unusual for ranchers to rely on such barriers-in fact. The expert also testified that he himself used natural barriers and found them “extremely effective and cost-effective.”

The judge found that the testimony was inconclusive as to whether the cow came from Parcel 079, let alone whether the cow egressed through a gate left open by the public, some deficiency in the gate or fencing, or passed through an unfenced natural boundary.

There was also evidence introduced at trial that CDOT’s fencing, which Parcel 079 partially relied upon to pen in cattle, was in disrepair. A CDOT employee testified that CDOT is responsible for maintaining the gates in its fencing along Parcel 079.

Plaintiff argued that a reasonable jury couldn’t have concluded that Defendants weren’t negligent. She relied on the expert testimony of her livestock handling expert and lay testimony of other ranchers to argue that “general ranching industry standards” require complete fencing around cattle pastures, particularly near highways. The ranch management expert testified that the fencing in Parcel 079 was inadequate and “not good management.”

Plaintiff argued that Defendants put on no evidence to rebut these conclusions or to establish that they took reasonable or appropriate measures to contain the cow. Plaintiffs conceded that Defendants did have expert testimony to support their case, but argued that those expert opinions were premised on the report by their land management expert, and there was “no testimony that the conditions that existed [when the report was made] were the same as, or even similar to, those that existed on the date of the accident.”

Defendants responded that they offered “more than sufficient, competent evidence from which the jury could have reached its verdict.” Defendants also focused on the absence of evidence, pointing out that there was no direct evidence offered establishing where the cow at issue came from or its path to the highway. Defendants argued that the jury heard evidence that a member of the public passing by might have accidentally left one of the gates open, or perhaps the cow passed through a damaged section of CDOT fencing, or perhaps still the cow was unusually motivated and traversed one of the natural barriers.

As to the expert testimony of Defendants’ ranch management expert, they argued that his testimony established that foolproof fencing is not feasible-cows are large and powerful animals and will find a way if there is a will. Nearby ranchers testified that cattle escapes were not uncommon even with fencing. Defendants’ ranch management expert further testified that the use of natural barriers is not uncommon, and the fencing around Parcel 079 was adequate as least as to those sections for which the Defendants were responsible. Defendants also relied upon the testimony of the land management expert, who testified that it was common practice in the county for ranchers to use natural barriers for some locations rather than barriers, and that both the land management expert and Defendants’ ranch management expert testified that there was sufficient water and feed on the parcel so that cattle would not be motivated to scale the rocky terrain to Highway 145 in search of feed. In sum, Defendants concluded there was ample evidence from which the jury could have found that them not to be negligent.

In her Reply, Plaintiff argued that she did carry her burden to prove negligence. She pointed to the testimony of her livestock handling expert who testified that it was “more likely than not” that the cow at issue came from the parcel. Judge Wang found Plaintiff’s argument substantially the same as in the original motion—there was more evidence to support a finding of negligence than there was to establish reasonable care, and thus the jury couldn’t have reasonably returned a verdict for Defendants.

Judge Wang agreed with Defendants that there was more than sufficient evidence the jury could have relied on to determine that Defendants weren’t negligent. Plaintiff was correct that there was countervailing evidence of negligence and insufficient fencing, but the judge explained that the court may not reweigh the evidence, consider the credibility of the witnesses, or substitute its judgment for the jury’s. The issue in this case was negligence, whether Defendants exercised reasonable care to contain the cow. And there was sufficient evidence to support the jury’s verdict. Regardless of where the cow escaped, there was sufficient evidence that Defendants’ actions—even if ultimately unsuccessful in containing the cow—were reasonable.

Plaintiff’s Motion for a New Trial Based on Insufficiency of Evidence Supporting the Verdict was denied.


Bryant v. Reams, 2018 U.S. Dist. LEXIS 192192 (D. Col. November 9, 2018)