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Court: Arkansas couple can't sue over cattle burial

LITTLE ROCK, Ark. (AP)--An Arkansas couple can't sue a tractor-trailer driver, his company and his insurance carrier over burying dead cattle in a shallow pit on their property without permission, the state Court of Appeals ruled Dec. 31.

A divided court ruled that Louis and Elizabeth Schmoll couldn't make a link between the men who buried the carcasses and those being sued. The couple sued driver William E. Cole, trucking company owner Ronny Kisner and the Hartford Casualty Insurance Co., over the Dec. 17, 2002, crash.

The Schmolls' lawsuit claimed they had to close their livestock auction business and restaurant after discovering the decaying carcasses on their property. The couple also claimed the incident damaged their reputations.

Thirty-eight heads of cattle died in the crash after Cole allegedly fell asleep and wrecked the truck, according to court filings. After the crash, a contractor came to collect the surviving cattle for safekeeping at the Schmolls' stockyard in Conway County. An Arkansas State Police trooper told the man to take the dead cattle to the stockyard and "dump them there," the majority opinion by Chief Judge John Mauzy Pittman reads.

"It would stretch foreseeability to say that Kisner and Cole should have anticipated that someone over whom they had no control would improperly dispose of dead animals," Pittman wrote.

The insurance company, which paid the contractor that removed the cattle, had no responsibility over the burial as police requested the contractor's help at the crash site, Pittman wrote.

In a dissent, Judge Karen R. Baker wrote that state law dictates that dead cattle must be properly disposed and that Kisner and Cole had a responsibility to oversee it. The insurance company also had a responsibility to monitor the activity of the contractor in the field as they paid for the cleanup, Baker wrote.

"There are issues of fact in this case and the Schmolls have a constitutional right to trial of those factual issues by jury," she wrote.

Judges Robert J Gladwin, Sarah J. Heffley, D.P. Marshall, John B. Robbins and Larry D. Vaught joined the majority decision. Judges Josephine Linker Hart and Eugene Hunt signed on the dissent.

1/12/09
6 Star Midwest Ag\9-B

Date: 1/6/09



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