Plaintiffs/Appellants Tonya and Ronald Brookover were driving on a highway through open ranch land near Salome when their car collided with a cow in the roadway. They then sued Roberts Enterprises, which leased the surrounding open ranch land for grazing purposes, alleging ordinary negligence as well as res ipsa loquitur. Relying on Carrow Co. v. Lusby, 167 Ariz. 18 (1990), the Superior Court granted summary judgment for defendant. The Brookovers appealed.
In a decision by Judge Thompson, Division One affirmed. Division One concluded that under Carrow, the simple failure to fence in open range grazing lands does not fall breach the duty of ordinary care owned by ranchers to the motoring public. Id. at 24-25. In order to show negligence under Carrow, a plaintiff must point to specific acts or omissions besides the lack of fencing, that might show a breach of the duty of care. Division One found no error in the Superior Court's conclusion that no such evidence existed here.
On the related argument by Plaintiffs that that res ipsa loquitur established Defendant's breach, Division One reaffirmed that a claim of res ipsa loquitur requires a threshold showing that the accident in question be one that does not occur in the absence of negligence. See Lowrey v. Montgomery Kone, Inc., 202 Ariz. 190, 192 (App. 2002). The Court then went on to agree with the Superior Court that the Brookovers had not shown that a collision between a cow and a car on a road through open range land is an accident that only occurs in the presence of negligence.
Judges Norris and Hall joined Judge Thompson's opinion.