AMI 1601 Animals—Duty of Owner or Custodian

This instruction should be used when negligence is predicated upon the violation of the common law duty to use ordinary care. If an applicable statute imposes absolute liability, usually only the issue of damages will be submitted to the jury. If an applicable statute imposes a duty, the violation of which is only evidence of negligence, AMI 601 should be used.

This instruction was cited with approval in Bolstad v. Pergeson, 806 S.W.2d 377 (1991). In that case, a dog, while chasing a squirrel, ran into a vehicle leaving a dent in the door. The court found that while the dog had shown no prior propensity to crash into cars, the dog owners should have known that a dog running at large and chasing squirrels raised a reasonable likelihood of injury of some sort.

In Sanders v. Mincey, 317 Ark. 398, 879 S.W.2d 398 (1994), this instruction was properly given where guinea hens were allowed to run at large causing an automobile accident after the hens entered the highway. Citing Bolstad, supra, the court found that allowing the hens to run at large raised a reasonable likelihood of injury.

The English common law required an owner of domestic animals, such as cattle, to keep them off the land of other persons, whether it was fenced or not, and the failure to do so was an actionable trespass (absolute liability). This rule has not been adopted in Arkansas. St. Louis, I. M. & S. Ry. Co. v. Newman, 94 Ark. 458, 127 S.W. 735 (1910); Little Rock & F.S.R. Co. v. Finley, 37 Ark. 562 (1881). However, the negligence theory of liability is available. Finley v. Glover, 229 Ark. 368, 315 S.W.2d 928 (1958). Logically a custodian of such animals other than the owner can be liable under the negligence theory. See Fraser v. Hawkins, 137 Ark. 214, 208 S.W. 296 (1919).

Ark. Code Ann. § 5-62-122 prohibits the owner of certain animals from allowing them to run at large. See Prickett v. Farrell, 248 Ark. 996, 455 S.W.2d 74 (1970). A violation of this statute is evidence of negligence. Rogers v. Stillman, 223 Ark. 779, 268 S.W.2d 614 (1954).

Ark. Code Ann. § 2-38-301 provides for the adoption of local acts prohibiting the running of certain named animals at large (absolute liability for damage to crops on the trespass theory).