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Madrid v. Fifth Judicial District Court12/11/2002
ed in strict liability dog-bite cases governed by statute, and the other limiting defenses to only those expressly provided in the statute. We were persuaded by the latter line of authority, concluding that the only defenses available to the dog-owner were those expressly set forth in the statute--provocation and unlawful presence. We stated: "Ideas of comparative or contributory negligence are inapplicable under such a strict liability scheme." Stroop, 271 Mont. at 322, 896 P.2d at 444.
This same analysis applies in the case at bar. Section 81-4-215, MCA, states:
If any cattle, horses, mules, asses, hogs, sheep, llamas, alpacas, bison, or other domestic animals break into any enclosure and the fence of the enclosure is legal, as provided in 81-4-101, the owner of the animals is liable for all damages to the owner or occupant of the enclosure. This section may not be construed to require a legal fence in order to maintain an action for injury done by animals running at large contrary to law.
The only defense supplied by the statute arises if the enclosure breached by the animal is not legal. No such defense exists here. Because the statute does not expressly provide for an assumption of the risk defense, and pursuant to our holdings in Madrid and Stroop, we conclude that the District Court erred in allowing Zenchiku to interpose the defense of assumption of the risk, and that the District Court therefore has proceeded under a mistake of law.
In light of the fact that this is the second time this case has come before this Court, and so as to both preclude the prospect of a third such occasion and clarify the meaning of our holding in Madrid,
IT IS HEREBY ORDERED that Petitioner's Application for Writ of Supervisory Control is GRANTED.
IT IS FURTHER ORDERED that this cause is remanded to the District Court for further proceedings consistent with this Order.
IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by mail on all counsel of record and the Fifth Judicial District Court, Beaverhead County, the Honorable Loren Tucker.
DATED this 11th day of December, 2002.
KARLA M. GRAY
PATRICIA COTTER
JAMES C. NELSON
JIM REGNIER
W. WILLIAM LEAPHART
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