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Publication #FE105

Handbook of Florida Fence and Property Law: Duty to Fence1

Michael T. Olexa, Eugene E. Shuey, and Patrick H. Todd2

Preface

With approximately 19,000 livestock farms in the state, along with horse farms; orange groves; croplands of soybeans, sugarcane, cotton, and peanuts; and many other agricultural and livestock facilities, livestock and farming have a significant impact on Florida's economy. Florida's agricultural economy has been required to co-exist with rapid population and commercial growth in the state over the last twenty-five years. Conflicts between these interests bring to prominence issues such as the rights and responsibilities of adjoining landowners, farmers, and property owners in general. Due to the added importance placed on these areas of real property, the legal aspects of fences in the state of Florida have taken on significant importance.

This handbook is designed to inform property owners of their rights and responsibilities in terms of their duty to fence. Discussed areas include a property owner's responsibility to fence when livestock is kept on the property, the rights of adjoining landowners to fence, the placement of fences, encroachments, boundary lines, easements, contracts, nuisances, and a landowner's responsibilities towards persons who enter his or her property.

This handbook is intended to provide a basic overview of the many rights and responsibilities that farmers and farmland owners have under Florida's fencing and property law. Readers may value this handbook because it informs them about these rights and responsibilities. However, the reader should be aware that because the laws, administrative rulings, and court decisions on which this handbook is based are subject to constant revision, portions of this handbook could become outdated at any time. This handbook should not be viewed as a comprehensive guide to fencing and property laws. Additionally, many details of cited laws are left out due to space limitations. This handbook should not be seen as a statement of legal opinion or advice by the authors on any of the legal issues discussed within. This handbook is not a replacement for personal legal advice, but is only a guide to inform the public on issues relating to fencing and property laws in Florida. For these reasons, the use of these materials by any person constitutes an agreement to hold the authors, the Institute of Food and Agricultural Sciences, the Center for Agricultural and Natural Resource Law, and the University of Florida harmless for any liability claims, damages, or expenses that may be incurred by any person as a result of reference to or reliance on the information contained in this book.

Readers wishing to find further information from the Florida Statutes may access those statutes online at http://www.leg.state.fl.us/STATUTES/.

Acknowledgments

We wish to acknowledge Carol Fountain and Travis Prescott at University of Florida for their assistance in editing this handbook.

Duty to Fence

As a livestock owner, do I have a duty to fence?

Florida law does not impose on the owners of livestock and animals the duty to fence (Fisel v. Wynns, 667 So.2d 761, 762 [Fla. 1996]), but as discussed below, owners may be civilly or criminally liable for animals that stray onto public roads.

What if I do not have a fence and my livestock escape?

Owners who intentionally, knowingly, or negligently permit their animals or livestock to run at large or stray upon the public roads are liable for any resulting injuries or property damage, and may even be guilty of a second-degree misdemeanor (Florida Statutes sections 588.15, 588.24 [2014]). Criminal penalties may include a term of imprisonment not exceeding 60 days and/or a fine of as much as $500 (Florida Statutes section 588.24, citing Florida Statutes sections 775.082, 772.083 [2014]). Similar criminal penalties may apply to the owner of livestock carrying any contagious diseases who knowingly and without permission from another owner allows his livestock to run at large or come into contact with other animals (Florida Statutes section 828.16 [2014]). Case law examples for civil liability include Hughes v. Landers, 215 So.2d 773 (Fla. 2d DCA 1968) (involving an automobile collision with a horse), Prevatt v. Carter, 315 So.2d 503 (Fla. 2d DCA 1975) (involving a motorcycle collision with a cow), Davis v. Johnson, 288 So.2d 554 {Fla. 2d DCA 1974) (involving a motorcycle collision with a cow), and Fisel v. Wynns, 650 So.2d 46 (Fla. 5th DCA 1994), approved, 667 So.2d 761 (Fla. 1996). Under current Florida law, officials have the right to impound and sell off animals found running at large, regardless of the owner's liability (Florida Statutes sections 588.16–588.25 [2014]).

Is there any liability if a car strikes an animal that strays onto a public highway?

Whenever a car or truck collides with an animal that is at large on a public highway and the driver is killed by the resulting collision, the owner of the animal shall have no cause of action against the personal representative of the estate of the said deceased operator for damage to his animal (Florida Statutes section 768.12 [2014]). If he is not negligent himself, the animal owner may bring suit for negligence against a driver who survives the collision and causes damage to the animal (Toole v. Dupuis, 735 So.2d 582, 582–583 [Fla. 4th DCA 1999]; Boswell v. Russell, 819 So.2d 925, 926–927 [Fla. 5th DCA 2002]). The driver or the driver's estate may have a cause of action against the animal owner for injury to or death of the driver or any passengers if the complainant can prove both ownership of the animal and that the owner at least allowed the animals to stray (Florida Statutes section 588.15 [2014]; Selby v. Bullock, 287 So.2d 18, 20–21 [Fla. 1973]).

Liability may be assessed or not assessed against the owner of an escaped animal based on the facts of the case. For example, in Hughes v. Landers, Hughes and his daughter collided with a horse while driving their automobile. resulting in the daughter's death (Hughes v. Landers, 215 So.2d 774). The lawsuit against the animal's owner provided evidence showing the general disrepair of the fence used to corral the horse (Id.), (The fence was negligently maintained as shown by the facts that there were no hinges or locks on the cattle gap gate, the gate was secured only by two rotted and flimsy ropes, the bottom rope was untied, and a section of the fence had loose wire where two posts were leaning at a forty-five degree angle.) Also, in Prevatt v. Carter, where a motorcyclist driving at night suffered injuries when he collided with a black cow, the court said that the motorcyclist could establish the owner's negligence by showing that the fence surrounding the livestock was in disrepair and that the owner knew his livestock were escaping from the grazing area (315 So.2d 505). (The mere fact that livestock are running at large on a public highway does not automatically mean that the owner intentionally or negligently permitted the animals to run at large.) There must be proof of negligence. For example, there would be no negligence if a horse escaped from a closed gate that could only be opened by human hands (Lee v. Hinson, 160 So.2d 166, 167 [Fla. 2d DCA 1964]), but negligence could exist if an animal could open the gate by slipping a chain off a bent nail (James v. Skinner, 464 So.2d 588, 589 [Fla. 2d DCA 1985]) (distinguishing the facts from those in Lee).. Courts have determined that an owner whose cows broke through three separate enclosures before reaching a public road was not careless or negligent (Welch v. Baker, 184 So.2d 188, 192 [Fla. 1st DCA 1966]) (The undisputed evidence showed that the defendant had placed his cattle...within three fenced enclosures, so that the cattle would have to break down all three fences...before they could reach the public road), but reasoned that negligence may exist when a properly maintained fence was not strong enough to contain a large bull (Hanson v. Scharber, 749 So.2d 563 [Fla. 2d DCA 2000]). An owner might escape liability if there is evidence, such as unknown tire tracks or a different knot used to tie a gate, that another person caused the animal's release (Gordon v. Sutherland, 131 So.2d 520 [Fla. 3d DCA 1961]).

If my fence is broken or damaged, can someone other than the owner of the property be held liable?

A person who causes the destruction of part of someone else's fence could be liable for any losses resulting from the fence being brought down (Florida Statutes section 810.115[3] [2014]).

Is there any liability if I do not own the animals that are kept on the land I own?

Liability for damages resulting from an animal that is at large remains with the legal owner of the animal and not the person who is merely the legal owner of the land on which the animal is located (Davidson v. Howard, 438 So.2d 899, 902 [Fla. 4th DCA 1983]; Florida Power & Light Co. v. Morris, 944 So.2d 407, 409–410 (Fla. 4th DCA 2006)).

Who is liable if only one family member is at fault and the entire family owns the animal?

Under Florida law, a wife is not liable for her husband's tort when she has no knowledge of his tortious conduct and does not authorize or participate in the act (Boswell v. Russell, 819 So.2d 925, 927 [Fla. 5th DCA 2002]). Under the Warren Act, a wife's ownership of a bull merely imposes a duty on her to not act negligently in allowing it to stray upon the public roads (Id. at 927). It did not impute her husband's knowledge or negligence to her (Id. at 928).

Do any industries have a duty to fence in Florida?

Several industries have a duty to fence under certain circumstances. Any company or individual not engaged in actual bona fide mining operations must either fill in or fence any hole that is larger than two feet wide and two feet deep to prevent livestock or domestic animals from falling into any holes (Florida Statutes section 768.10 [2014]; Florida Statutes section 768.11 [2014]) (discussing measure of damages). Landfills, solid waste facilities, and construction and demolition debris disposal facilities must include fences to prevent unauthorized access or waste disposal (Florida Administrative Code Statutes 62–701.500[5], 62–701.710[4][f], and 62–701.730[4][i] [2014]). Operators of amusement rides must fence or otherwise restrict any areas where people may be endangered by the operation of the ride (Florida Statutes section 616.242 [2014].

Any junkyard within 1,000 feet of any interstate or federal-aid highway must be screened by natural objects, plantings, fences, or other appropriate means so that the junkyard cannot be seen from the road (Florida Statutes section 339.241[3][a] [2014]). The law also requires that the fence always be kept in a condition of good repair (Florida Statutes section 339.241[4][a]). Failure to do so may result in fines against the owner of the facility (Florida Statutes section 339.241[6]).

Florida law no longer imposes a duty on railroads to erect fences to prevent livestock from getting on the tracks and causing collisions (Florida Statutes section 337.401 [2014]). Some Florida case law, however, still indicates that railroads passing through livestock farms have the duty to keep a fence in good repair to prevent livestock from getting onto the railroad tracks because the railroad could be liable for the death or injury of livestock resulting from the failure to maintain the fence (Seaboard Air Line Railway Company v. Maige, 147 So. 215, 216–217 [Fla. 1933]), affirmed, Doral Country Club, Inc. v. Klatzkin, 433 So. 2d 57 [Fla. 3d DCA 1983]).

Do any individuals other than livestock owners have a duty to fence in Florida?

Private game preserves or farms must fence the area to prevent the escape of domestic game and the entrance of wild game (Florida Statutes section 379.302[2] [2014]). Special fencing requirements exist for anyone who keeps captive wildlife classified as a Class I or Class II carnivore (Florida Administrative Code Annotated Statute 68A–6.0022[6] [2014]). Residential pool owners may opt to enclose their pools to meet the safety feature requirement and to pass the final pool inspection (Florida Statutes sections 515.27[a], 515.29 [2014]). Additionally, local ordinances may impose duties on swimming pool owners to erect and maintain a fence around pools.

Do any prohibitions on fencing exist under Florida law?

It is a first-degree misdemeanor for anyone to obstruct a public road or highway with a fence or other obstruction (Florida Statutes section 861.01 [2014]). The confinement of animals without fresh water, food, regular exercise, and a change of air could result in a charge for a first-degree misdemeanor (Florida Statutes section 828.13[2] [2014]). Until June 2000, it was illegal to fix or cause to be fixed on unfenced property any stakes or canes or anything that could kill or maim cattle or other livestock (Florida Statutes section 588.07).

Summary

Florida law requires waste disposal facilities, companies that dig open pits, and owners of junkyards to fence their property. Railroad companies may still be liable for any injuries to livestock resulting from their failure to keep their fence in good repair. For junkyards, the duty to fence arises from those junkyards which are within 1,000 feet of any interstate or federal-aid highway. Special fencing requirements also exist for private game preserves, swimming pools, and amusement rides. It is illegal for anyone to obstruct a public highway with a fence, or to confine animals without food and water.

Further Information

Circular 1242, Handbook of Florida Fence and Property Law http://edis.ifas.ufl.edu/TOPIC_BOOK_Florida_Fence_and_Property_Law

Footnotes

1.

This is EDIS document FE105, a publication of the Food and Resource Economics Department, UF/IFAS Extension Gainesville, FL. This information is included in the Handbook of Florida Fence and Property Law, Circular 1242. Published November 1999; revised December 2006, August 2010, and November 2014. Please visit the EDIS website at http://edis.ifas.ufl.edu.

2.

Michael T. Olexa, professor, Food and Resource Economics Department, and Director, Center for Agricultural and Natural Resource Law, UF/IFAS Extension, Gainesville, FL, and member, Florida Bar. Eugene E. Shuey, certified real estate attorney, Gainesville, FL, and member, Florida Bar. Patrick H. Todd, law student, Levin College of Law, University of Florida, Gainesville, FL.


The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other UF/IFAS Extension publications, contact your county's UF/IFAS Extension office.

U.S. Department of Agriculture, UF/IFAS Extension Service, University of Florida, IFAS, Florida A & M University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Nick T. Place, dean for UF/IFAS Extension.