This decision from the Supreme Court of Florida is presented word-for-word. The case was cited as PAULA MICHELLE FISEL, Petitioner, vs. WILLIAM C. WYNNS and FRANK R. WYNNS, Respondents. The court rendered this decision on February 8, 1996.

We have for review Fisel v. Wynns, 650 So. 2d 46 (Fla. 5th DCA 1994), wherein the district court certified the following question:

Have changing conditions in Florida altered public policy as announced in Selby v. Bullock, 287 So. 2d 18, (Fla. 1973), so that a livestock owner may now be liable for injuries resulting when the owner’s livestock wanders through an open gate, and the reason the gate is open is unknown?

Fisel, 650 So. 2d at 52. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the negative and approve Fisel.

Fisel’s truck struck a black cow standing in a dark road at midnight. Twenty-year-old Paula Fisel was returning to a party near Bushnell in Sumter County, Florida, early Sunday morning, March 15, 1992, when her pickup truck struck a cow that had strayed onto the county road through an open gate. When she got out of her truck, Fisel was struck by a vehicle approaching from the opposite direction and suffered a broken leg.

Fisel sued the cow’s owner, Frank Wynns, and deposition testimony revealed the following: Wynns lived alone on forty acres on which he kept forty head of cattle; Wynns had no employees; Wynns’ property was fenced and had several gates; the western gate, which is 1400 feet from the county road and secured by a sliding latch that can be operated only by human hands, was found open following the accident; Wynns had used the gate the day before and closed it; Wynns had no visitors during this period and did not know how the gate was opened. There was no showing that Wynns’ cattle had escaped on prior occasions or that there had been trespassers in the past.

The trial court granted summary judgment in favor of Wynns and the district court sitting en banc affirmed on the basis of Selby v. Bullock, 287 So. 2d 18 (Fla. 1973), wherein this Court ruled that a showing of at least negligence is required to establish liability against a livestock owner under sections 588.14 and 588.15, Florida Statutes (1971). The district court certified the above question.

Fisel argues the following: Changing conditions have altered public policy since Selby; a violation of section 588.14 is negligence per se; and summary judgment was improper because disputed issues of material fact remain. To require plaintiffs to show negligence or more, Fisel asserts, results in a “shoo-in” rule whereby livestock owners escape all liability absent a showing that they practically shooed their animals into the road. We disagree.

The rule at common law was that livestock owners had to confine their animals or face liability:

“Open range” laws enacted during the 1800s reversed this rule and placed the burden on property owners to fence their lands to keep straying livestock out:

Nothing is clearer than that the purpose and effect of all this legislation were not only to change the common law and require of every landholder or other person that he should fence out his neighbor’s, and every one else’s stock, if he desired protection against damage from them, but also to establish and protect a right in resident owners of stock for their cattle and other domestic animals to range and graze on all uninclosed lands free of charge, and without any liability for any damage resulting from their going upon or grazing on any lands whatsoever not inclosed by a lawful fence. No special interest is of much if any more moment to our State, and none elicited earlier legislative attention than stock raising.

Cattle, hogs and sheep, if not all other kinds of live stock, not known to be dangerous, have been allowed, and accustomed at all times and in all parts of our State, since at least soon after its acquisition from the Spanish crown, to run at large and graze on all lands not inclosed by a fence. This has prevailed not only throughout the rural districts but also in the towns . . . . A different policy than that which has prevailed would have proven ruinous to the important stock interests of different sections of the State . . . Savannah, Fla. & W. Ry. v. Geiger, 21 Fla. 669, 682-85 (1886).

The “open range” ended in 1949 with passage of the Warren Act, a statewide scheme for keeping livestock off the roads. This act, which remains in effect today, requires livestock owners to control their animals:

This Court in Selby v. Bullock, 287 So. 2d 18 (Fla. 1973), addressed a scenario similar to the present case:

The jury in Selby returned a verdict in favor of the livestock owner and the plaintiff appealed to this Court, arguing that his equal protection rights had been violated because section 588.15 requires a finding of at least negligence whereas the “dog bite” statute imposes strict liability. The Court rejected out of hand the idea of holding livestock owners strictly liable:

We analyzed the trade-off between livestock owners and motorists and noted that any change in the law would have to come from the legislature:

The legislature has left section 588.15 intact following Selby and we are just as bound today as we were in 1973 to give the statute a literal reading. Although it is possible that the balance of interests between livestock owners and motorists has shifted in the intervening years, this is a matter for the legislature–not this Court–to address:

Accordingly, we reaffirm Selby on this issue–we will not “re-legislate that Act.”

In the present case, the trial court properly granted summary judgment. Florida Rule of Civil Procedure 1.510 provides:

Courts should be parsimonious in granting summary judgments in negligence suits:

But it is never enough “for the opposing party merely to assert that an issue does exist.” Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979).

Here, the key evidence is uncontroverted. The gate was 1400 feet from the county road and was secured by a sliding latch that could be operated only by human hands; Wynns was the last to use the gate and he closed and secured it. There was no showing whatever of prior strayings or trespassers. No construction of these facts yields a reasonable inference of negligence.

Based on the foregoing we answer the certified question in the negative and approve Fisel.